For an employee in Texas there are very few protections because Texas is an at-will employment state. An employer can fire an employee for any reason or no reason, and it is protected under Texas state law. The only thing an employer cannot do is terminate someone or take an adverse action against them for an illegal reason where their motivation is based on an employee’s protected characteristic. On that backdrop, it would seem that an employee has no recourse against an employer who is treating employees poorly, but not illegally. However, the National Labor Relations Act (NLRA) does more than protect unions, it also creates an avenue for employees to raise concerns about the terms and conditions of their employment. The NLRA was meant as a way for workers to advocate for themselves, which most of the time takes the form of creating a union, but the protection is not limited to union members. Section 7 (aptly named “Rights of Employees”) states that “employees shall have the right…to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” This provision is given teeth by a later section which states that things like an employer’s interference with or restraint of these Section 7 rights is an unfair labor practice. The NLRA even created the National Labor Relations Board (NLRB), which is an independent Federal agency that operates to enforce these provisions. Based on this history and structure, the NLRA gives employees a toolbox that can be used to approach an employer about their employment and have that activity protected by law.
First, because it is worth repeating, Section 7 protects almost all employees, regardless of their union membership. The protection extends when there is “concerted activity.” Concerted activity can be as simple as one employee, Laura, speaking with a group of employees at the lunch table about how it really stinks that Walmazon does not pay an adequate wage, and proposes that the employees should approach their manager, Paul, about the issue. On a basic level, the concerted activity has to be two or more employees that are trying to act together to achieve a goal related to their employment. In my example, it was Laura speaking to the group about an issue related to the terms of their employment, their pay rate, and trying to organize the group to take action i.e. speaking to management. Another example would be that same employee, Laura, speaking with a group of her coworkers at the lunch table about the lack of safety protocols at the Walmazon warehouse, but instead of trying to convince the group to take action together, Laura steps up and says “I’ll go to management about our concerns.” In this alternate example, Laura approaching management on behalf of the group of employees to express their concerns is also protected under the NLRA.
The second key part of the above example, other than Laura stepping up to act for the group or the group acting collectively is that the issue they were discussing is an issue of “mutual aid or protection.” The mutual aid or protection issue Laura brought up in the first example was the amount of pay employees were receiving and in the second example it was the safety protocols. These issues refer to the terms and conditions of their employment at Walmazon and are both protected topics under the NLRA.
The last tool of the NLRA-protection toolbox limits the way the first two tools can be utilized. For the NLRA to apply, the concerted activity for mutual aid or protection must be done through “legitimate means.” The legitimate means part is tricky because it constrains how employees can carry out their objective. For example, if Laura spray-painted the side of the Walmazon warehouse with, “Pay Us More!” she would not receive the protection of the NLRA. While, as discussed above, her actions are on behalf of the group and for the mutual aid of her coworkers, her defacement of company property in this situation would not be a legitimate means. If Laura instead had approached her manager, Paul, in his office, sat down, and shared her concerns about the pay rate on behalf of the group of her co-workers, then Laura’s method would likely qualify as a legitimate means and receive NLRA protection.
In sum, the NLRA is meant to be construed broadly to protect workers’ ability to advocate for themselves with or without union membership, however there are limitations to that protection. If an employee brings up concerns about the terms and conditions of employment to management, then the issues may qualify for protection. Collective employee action or the use of a spokesperson to advocate on behalf of the group based on these issues is part of this protected activity as long as it is through legitimate means. This article outlines what protected activity is under the NLRA and how employees can speak to their employers without legal retribution, but employers do not always adhere to the law. Therefore, if you believe that an employer has retaliated against you based on protected activity under the NLRA I encourage you to reach out to a Dallas Employment Lawyer for a consult to explore any options you may have.
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