Prior to the Obama Board, the NLRB had held that employees did not have any statutory right to use an employer’s email systems for such purposes. These precedents were rejected in a 2014 decision, Purple Communications, Inc.
Our brief highlights the practical implications of the Purple Communications standard for employers’ interests in maintaining productivity and network security, as well as the significant First Amendment and Fifth Amendment issues associated with the new standard. We observe that the standard violates the First Amendment by compelling employers to publish “speech” on their email systems “that they not only object to, but which may also harm their reputation and standing with customers, clients, and the general public.”
