Fired for Using Facebook On Company Time

[quession]

My question involves labor and employment law for the state of: Texas

I was recently terminated for "messaging another employee on Facebook on a company computer during business hours."

The truth is that I wrote a "private" message to another employee (who was at the time and still is on maternity leave) on my own computer in the privacy of my own home. I actually have the original conversation from Facebook (which my employer supplied me with)with the time stamps to prove that 90% of the conversation didn't even take place on a work day, and the part of the conversation that did take place on a work day took place at 6am which is two hours before I even go to work.

As it turns out, the lady that is on maternity leave left her login on so that when another employee went to use that computer and went on her Facebook page and started snooping around, she went in her private messages and found a "private" message conversation between another employee and I about our boss.

I saw on an AZ thread that for someone to view another persons "private" messages even if that person inadvertently left their login open it was considered a class 2 misdemeanor and possibly a civil action of invasion of privacy because it is considered equal with opening a persons' mail because it is password protected and not everyone has access to it. Is this the same for Texas and does it apply to a company computer even if the company computer was not used to generate ANY of the correspondence in question?

I just want to make sure that Texas Workforce Commission will honor my claim for unemployment and I could sure use the info. Also, if it the answer they gave me for firing me truly is their reason for firing me, then the whole office (including my boss) would have to be let go.

[cbg]

Your termination was legal - that is the bottom line.

No promises that we can make you will be binding on the TWC.

[ESteele]

You electronically communicated from home via Facebook with a co-worker (“co-worker # 1) who was on maternity leave at the time. In addition to neither you nor co-worker # 1 being at work, the communication occurred at a time neither of you would have otherwise possibly been at work. During this “private” conversation, you presumably said unflattering things about your boss.

A third party co-worker (“co-worker # 2”) went on co-worker # 1’s computer, discovered this Facebook communication and reported the communication to management. In turn, management terminated you.

This is unfortunate on numerous levels. As a general matter, presuming you were “employed at-will,” e.g., not a unionized employee, your employer could discharge you even though the purported rationale for your discharge is erroneous, i.e. you did not utilize a company computer to have an electronic conversation during work hours. The fact the reported underlying reasoning is false alone does not make your termination unlawful. Absent the existence of a contractual (e.g., an individual employment agreement) or other legal basis (e.g., an anti-discrimination law) prohibiting your discharge under such circumstances, your former employer generally retains the right to fire you even without good cause.

HOWEVER, you may nevertheless have a means of successfully challenging your discharge based on your aforementioned electronic conversation about your boss. Within the last year, the National Labor Relations Board (“NLRB”) has brought at least two unfair labor practices cases against employers which have fired workers for posting unflattering comments about their supervisors and/or work conditions on Facebook. The NLRB has maintained that Facebook postings related to workplace conditions are protected “concerted activity” under the National Labor Relations Act (“NLRA”) because such discussions involve conversations amongst co-workers concerning their terms and conditions of employment.

According, you should quickly contact the nearest NLRB office to inquire whether your communication is similarly protected under the NLRA. If I understand your post correctly, you conducted a private conversation via Facebook criticizing your boss. If not for co-worker # 2’s snooping, no one else would have been privy to your criticism. By comparison, it would seem that your private conversation regarding your boss should have as much protection under the NLRA as a public posting. (If you contact the NLRB, please let us know what happened with a follow-up posting.)

Separately, with respect to your application for unemployment insurance benefits, it would appear you have a good chance of obtaining benefits. You should be able to establish that you and co-worker # 1 were not at work at the time. An employer’s manifestly false rationale usually cannot buttress a “gross misconduct” finding to deny an applicant benefits.

I hope this works out well for you.

Source: http://www.huffingtonpost.com/2011/0..._n_866353.html

[cbg]

With respect, I'd like to point out that in one of the cases listed in the above link, the case settled out of court and was not determined in court. Likewise, there is a dispute about the other case and the actual reason for the termination. I also recall, and will post the link when I find it again, that in announcing the settlement of the CT case the NLRB pointed out that it was a narrow ruling and did NOT give employees free reign to disparage their boss, or the company. There has as yet been no legal ruling on this issue.

So while I am not saying don't look into it, I am saying don't take it for granted that there will be a favorable result.

[ESteele]

We have ventured into a little “Inside Baseball.”

The NLRB General Counsel (“GC”) has initiated three reported Facebook-related cases in the last nine months. The companies involved in the first two cases settled by agreeing, inter alia, to no longer discipline employees for discussing workplace conditions on their Facebook posts. The third case remains pending.

As cbg knows, it may take years for an unprecedented legal principle emanating out of a CG unfair labor practice charge (“ULP”) to result in a published opinion by the Board itself, much less a federal court of appeals or the Supreme Court. This fact does not dimnish, however, that the GC currently appears to be actively seeking this type of case to launch ULP’s. The original poster’s case would appear to be in the GC’s “wheel house.”

More fundamentally, the right of non-union employees to discuss workplace conditions amongst themselves is well established in Board and appellate court precedents. While a Facebook posting raises a novel wrinkle vis-à-vis the employees’ NLRA Section 7 rights, it nonetheless does readily appear that electronic diiscussion amongst employees is not any less protected than other 20th Century forms of co-worker communications concernig working conditions.

Furthermore, the original poster reported that she and co-worker # 1 had a private, e-mail-like communication via Facebook. Except for co-worker # 2’s interference, their communicaiton would have presumably remained private. It seems that the facts here are even more compelling than those in the cases the GC has recently initiated. Her employer would appear to have a great deal of difficulty explaining that how this private communication is not subject to Section 7 protection.

Of course, nothing in the area of employment law is a “slam dunk.” With that said, the original poster has nothing to lose in contacting the NLRB. She does not appear to have a viable alternative under federal or state law to contest her discharge. On the downside, if the GC declines to issue an ULP in her case, it will have cost her nothing to make the inquiry with the NLRB. On the upside, she could potentially, inter alia, recover her job and lost wages, and vindicate her and her co-workers’ Section 7 rights to discuss working conditions.