Fired for using company email during 'non-work hours'? You could have legal recourse.

Q: I'm an outside salesperson. Customers regularly email me in the evenings and I respond to these emails immediately. I also text and email the other sales people with leads and questions.

This morning I got fired. Apparently there's a policy that's never been enforced and that I didn't know about that employees may not use company-provided email during non-work hours. I asked my manager exactly what "non-work" hours are for me and he said "after five." Even he emails me after five and I respond.

I think the problem is that I talked about the fact that none of us are getting our promised raises. When I protested, he handed me a copy of the policy. It states that the reason the policy exists is to protect confidential company information. Is this legal? Who do I take my complaint to?

A: You may have recourse under the National Labor Relations Act, which governs an employee's right to "engage in concerted activity" or protest to coworkers about wages or matters of working conditions. You may also be able to claim retaliation and wrongful termination for a violation of the covenant of good faith and fair dealing.

The National Labor Relations Board has regularly ruled that employees have the right to email each other on company-provided systems during non-work hours and that this right outweighs an employer's need for protecting information.

On March 24, the NLRB issued a decision in the case of Purple Communications, Inc., affirming that an employer that provides its employees access to its email systems needs to allow employees to use these systems during non-work time if they engage in NLRA-protected activity, such as protesting wages and working conditions. The exception to this, allowed by the NLRB, is when the employer issued its policy to maintain "production or discipline." In other words, your company's policy may not hold up if you take your employer before the NLRB.

In last week's column, attorney-turned-HR-consultant Rick Birdsall and I outlined the covenant of good faith and fair dealing, observed by courts in Alaska. The good faith doctrine refers to the unwritten mutual promise that employers and employees treat each other fairly.

In your situation, you've said you were fired under a policy that's never been enforced and that your manager also violated. According to Birdsall, this shows unfair disparate treatment.

Employers that terminate employees based on unenforced and unfairly applied policies, which one or more managers also violate, risk losing wrongful termination lawsuits based on "unfairness." In your case, says Birdsall, if you were targeted because you protested the lack of a promised raise, you may have a particularly good case for claiming a retaliatory wrongful termination due to a breach of the covenant of good faith and fair dealing.