In Purple Communications, the National Labor Relations Board held that, absent “special circumstances” justifying specific restrictions, federal labor law requires employers to permit employees who have been provided access to their employer’s email system to use that system for union and other protected communications on non-working time. Purple Communications, Inc. 361 NLRB No. 126 (Dec. 11, 2014).

The employer’s rule in Purple Communications did not grant such access explicitly. However, instead of finding the rule violated the National Labor Relations Act, the NLRB remanded the case to its Administrative Law Judge to permit the employer to present evidence of special circumstances justifying the rule’s access restrictions. This set the stage for a decision explaining what the Board meant by “special circumstances.”

After the remand, however, the employer notified the ALJ that it would not contend that special circumstances existed to justify restrictions in its policy. Therefore, the Board likely will issue an Order finding the employer’s policy violated the NLRA; and, more important, the ALJ will not issue a supplemental decision providing insight into the meaning of special circumstances. Additional guidance on what constitutes special circumstances in the email policy context will have to wait until the next email case reaches the Board.