Aaron Bernstein
94 Geo. Wash. L. Rev. 229
Across the economy, employers’ widespread deployment of digital internal communications platforms—such as Slack, Microsoft Teams, and more—has radically altered the patterns of intraworkplace communication. For employers, these platforms present evolving opportunities for increasing productivity and worker engagement—but only a docile, agreeable kind of engagement. For workers and their unions, these platforms can be uniquely helpful tools in the continuing struggle for workplace democracy. As employers have repeatedly asserted their property right to regulate their workers’ use of internal digital communications platforms, the National Labor Relations Board (“Board”) has struggled to clearly define the proper role of these platforms under Section 7 of the National Labor Relations Act.
Although the Board has vacillated between different conclusions on statutory interpretation and policy judgment grounds, 2014’s Purple Communications, Inc.—in which the Board explicitly recognized workers’ right to use their employers’ internal email systems for organizational purposes—constitutes the Board’s most expansive definition to date of workers’ rights vis-à-vis these platforms. As the Board may consider expanding that right, this Note examines the merits of a potential challenge to such an expansion—specifically, a constitutional theory that has already threatened the original rule and will no doubt threaten future iterations: that it constitutes an uncompensated taking under the Fifth Amendment. This challenge poses a serious threat to the current iteration, as well as possible future iterations, based on the scope of the conduct authorized by the rule and the lack of clarity in its exceptions. To patch this weakness, this Note proposes a simple modification that would help insulate the rule from the vagaries of takings jurisprudence. Specifically, this Note proposes that the Board, in formulating a future rule, clarify that it is not authorizing any worker conduct that would cause actual harm to employer-owned digital communications systems under relevant state property law. Modifying the rule in this way would have the effect of cutting any takings challenge at the knee because it would clarify that no interest identifiable as “property” would be affected, meaning no taking has occurred. Doing so would avoid the thornier questions awaiting the Board beyond the relevance of the Fifth Amendment’s Takings Clause while causing minimal harm to the policy impact of the rule.
