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53 U. Louisville L. Rev. 433 (2014-2016)
Employee Electronic Communications in a Boundaryless World

handle is hein.journals/branlaj53 and id is 453 raw text is: EMPLOYEE ELECTRONIC COMMUNICATIONS IN A BOUNDARYLESS WORLD Robert Sprague* I. INTRODUCTION Keeping abreast of new communications technologies has been a daunting task, not just for sophisticated technophiles but also for businesses and the law.' It was only recently that e-mail transformed modem communication in the workplace.2 More recently, the National Labor Relations Board (NLRB or the Board) ruled that Liking a conversation on Facebook could constitute protected concerted activity under the National Labor Relations Act.' Even the United States Supreme Court has acknowledged the breadth of information available through cell phones: Today,... it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives-from the mundane to the intimate.4 Three quarters of American workers are considered mobile,5 meaning they are tethered to their workplace via mobile communications services and devices. As more and more workers are electronically linked into their employers through a variety of communications services and devices, they are simultaneously engaging in personal social interactions, often * J.D., M.B.A. Associate Professor of Legal Studies in Business, University of Wyoming College of Business Department of Management and Marketing. The author thanks Kellsie Jo Nienhuser, J.D. 2015, University of Wyoming College of Law, for her excellent research assistance. ' Cf Ariana R. Levinson, Toward a Cohesive Interpretation of the Electronic Communications Privacy Act for the Electronic Monitoring of Employees, 114 W. VA. L. REv. 461, 465 (2012) (noting the longstanding failure of the law to catch up with technology). 2 See Guard Publ'g Co. (Register-Guard), 351 N.L.R.B. 1110, 1125 (2007) (Liebman & Walsh, Members, dissenting in part), enforced in part sub nom. Guard Publ'g Co. v. NLRB, 571 F.3d 53 (D.C. Cir. 2009), overruled by Purple Commc'ns, Inc., 361 N.L.R.B. No. 126, 2014 WL 6989135 (Dec. 11, 2014). ' See Three D, LLC, 361 N.L.R.B. No. 31, 2014 WL 4182705 (Aug. 22, 2014); see also infra notes 13, 131 and accompanying text. 4 Riley v. California, 134 S. Ct. 2473, 2490 (2014) (citing City of Ontario v. Quon, 560 U.S. 746, 760 (2010)); see also Quon, 560 U.S. at 760 (Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self- expression, even self-identification.). ' More Than One Billion Mobile Workers Worldwide by Year's End, According to IDC, BUSINESSWRE (Feb. 19, 2010, 8:00 AM), http://www.businesswire.com/news/home/20100219005085/ en/BillionMobile-Workers-Worldwide-Years-DC.

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