Your client calls and says that one of his employees posted complaints about the workplace on Facebook. A bunch of other employees echoed those criticisms and added a few choice criticisms of their own, particularly about management, breaks, staffing, when and how they are paid, etc. Much of the language used was, well, generally not language used in polite company. What really angered your client, though, was the public nature of the postings. The comments were not made on a private Facebook page solely amongst your client’s employees, but rather, on a public page visible to current customers, the media, and the entire world, for that matter. In a flurry of anger, he fired everyone involved. After cooling down a bit, he decided to run this by you, even though the client is certain he was well within his right to fire them all.
Unfortunately, you are now in the uncomfortable position of counseling your client that his employees may have engaged in protected concerted activity pursuant to the National Labor Relations Act (NLRA) and per the National Labor Relations Board’s (NLRB) past decisions, and therefore, he may have prematurely fired those employees. Here’s why.
Not every employee “like” is concerted activity
Fortunately for employers, the NLRB does not consider all employee social media communications concerted activity. Individual employee gripes, posts complaining about terms and conditions of employment with no language seeking to initiate or induce group action, and posts expressing individual discontent which are “liked” by fellow employees were found to not be concerted activity under the NLRA.