If two employees get together off hours to unload, complain about their job, and sarcastically insult their coworkers and employer, and if they are overheard by their business owner, that’s grounds for termination, right?
Actually, it isn’t.
If an employee innocently voices discontent with the support of a coworker, the National Labor Relations Act (NLRA) protects the employees from termination. Presumably, everyone has the right to complain about their job, so long as they are actually trying to change things.
Enter Facebook. Suddenly, this right to express dissatisfaction has been transferred to the social media stage. The National Labor Relations Board (NLRB) has generally treated Facebook posts exactly as it would treat strike signs or group meetings, the employee is protected so long as he or she is speaking about terms or conditions of employment on behalf of other employees and so long as the speech isn’t too extreme.
So if Employee X gripes about the hour, and Employee Y chimes in, the two are engaged in concerted speech and should be free from termination.
But how much of a “chime in” do you need? Let’s say Employee X logs into Facebook to enter a status ranting about hours or wages, and Employee Y simply “likes” the status. Does “liking” result in concerted speech?
If we’re adapting real-life to the virtual world, that would seem to be the case. “Liking” is tacitly agreeing with a particular status, sort of like standing behind someone’s opinion. Employee Y agrees with the speech, and so X is off the hook. So, potentially, all an employee needs is a co-employee to “like” the status, and she can avoid being terminated for voicing her opinion.
While the NLRB has not yet ruled on these particular facts, the situation is out there and likely plays out on a daily basis. Employers should be aware that employees could be protected from termination if another employee comments on or even simply “likes” a negative status.