San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

As I have described here a few times here, here and here, employees may make negative comments on Facebook about their job.  So long as the employee is deemed to be discussing "terms and conditions" of employment with other employees, then yes, the employee can say things the employer would prefer not to hear.  They may do so pursuant to the National Labor Relations Act which protects workers' right to form or merely consider forming a union.  

According to a San Antonio Express News report, there have been some 100 complaints filed with the National Labor Relations Board regarding Facebook comments about work.  See news report.  Employees do not win every case.  I am sure the outcome often depends on the diligence of a particular NLRB investigator and whether the employee can show s/he shared these concerns with co-workers.  

If the employee merely gripes to himself, the comment would not be protected by the NLRA. In one case, the employee complained about pay and poor quality of services provided by the employer.  The NLRB found that with no indication that the employee discussed these problems with co-workers or that she tried to take these complaints to management, then her gripes were not protected by the NLRA.  If the employee cannot show "concerted" activity, then the activity will not fall under the ambit of the NLRA. 

Employers should note one comment by the NLRB's general counsel: many company media policies are overbroad prohibiting any negative comment about the employer on social media.  Such a policy conflicts with the NLRA and should be avoided.  

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 A little known provision in the National Labor Relations Act  provides protection to employees when they discuss "terms and conditions" of employment.  The discussion must be between two or more employees.  The purpose of this provision (remember, the NLRA was passed in 1935) was to protect employees who may be forming a union.  But, for workers today, it means you can discuss issues in the workplace so long as the discussions concern problems at work.  So, for example, several years ago, there was a case where female employees discussed possible sex harassment at work.  The court found that was protected conduct.  They should not have been disciplined for those discussions. 

So, what does "terms and conditions" mean?  What topics will be protected discussion?  In general, the topic needs to apply to more than one employee.  But, if you are not sure, contact theNational Labor Relations Board.  The NLRB enforces the NLRA. 

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 A worker in El Paso was vindicated after he was fired for talking to his co-workers about work conditions.  The employer's action in firing the worker violates the National Labor Relations Act.  Taking action against a worker for discussing "terms and conditions" of employment with co-workers violates the NLRA.  Eric Murillo worked for Chaffhaye, Inc. and arranged a meeting with other employees to discuss unsafe working conditions.  His employer fired him.

After filing a complaint with the National Labor Relations Board and seeking representation from the Paso del Norte Civil Rights Project, he was reinstated with lost wages.  OSHA also eventually got involved and also found violations.  See report.  Chaffhaye produces livestock and forage feed. 

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 Facebook is now the third largest country in the world.  That is, if each user of Facebook was a citizen of a country, then that country would be the third largest.  Facebook, Myspace, Linked, the list of social media web sites grows longer each year.  Blogging grows leaps and bounds every year.  Cases in which employers have tried to constrain what its employers write on these sites continues to grow.

Employers have some risk if they try to control what an employee writes.  If an employee posts information about his color, racial background, religion, disability, age or gender and those characteristics then lead to termination at work, the employee may have a right to pursue a discrimination claim.  

Some states, not Texas, have off-duty conduct laws.  Off-duty conduct laws provide that an employee may not be terminated for off-duty conduct that has no effect on the employer.  

An employee might write something online in opposition to discrimination in the workplace.  if the employer then takes some action against that employee, then any resulting adverse personnel action may constitute retaliation.  Retaliation for opposition to discriminatory practices is prohibited by Title VII of the Civil Rights Act of 1964, and all other civil rights statutes. 

If an employee complains online about "terms and conditions" of employment, then the employee is protected by the National Labor Relations Act.  The NLRA was designed to allow unions to form.  Typically unions start with complaints or discussions about workplace conditions.  To qualify, such discussions must be "concerted" and must be for the "mutual aid and protection" of more than one employee.  Concerted activity has always been protected.  But, now it is simply protected in the new online venue. 

That does not mean the employer cannot forbid employees from publicly disparaging their products or the products of competitors.  In one NLRB (National Labor Relations Board) filing, the union started a facebook page.  Sears objected to the extent that the website disparaged Sears products or the products of competitors.  The NLRB essentially agreed. 

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