If your business regularly scours Facebook, Twitter and other social media for negative comments from employees, you may want to think twice before firing them. Thanks to a National Labor Relations Board ruling handed down in late December 2012, a national law passed in 1935 that protects workers’ rights to strike or picket in front of a workplace also protects their right to comment about their jobs and workplace conditions on Facebook or Twitter.

The NLRB ruling involved the firing in 2010 of five employees from Hispanics United of Buffalo when an employee complained on Facebook that a co-worker was unjustly accused by bosses of being lazy. One of the five HUB workers fired, Mariana Cole-Rivera, claimed that her post was protected under a provision of the 1935 law called concerted activity, meaning that workers have the right to take collective action to improve their job conditions. The NLRB agreed with her.What made Cole-Rivera’s Facebook post protected under the law is that her four co-workers agreed with her, showing common cause. Yet, because the ruling is rather narrow, employers still have the ability to fire employees for personal comments on social media. What won’t fly with the federal government is firings over comments criticizing a business, bosses and co-workers when postings are backed up by other employees and show common cause in an effort to improve a situation. Companies can still fire their employees for a host of reasons including supporting what they feel may be undesirable charities, supporting a political candidate that does not meet the business’s needs or unfounded criticism.Perhaps the best rule of thumb in these situations is that businesses and their executives should think before they fire an employee for social media comments. No company likes to see their business portrayed in a negative light. Libelous comments on social media can still get employees in trouble. However, if the criticisms bear some grain of truth and more than one person backs them up, possibly the best course of action is to rectify the situation in-house to avoid future media damage.

We recommend a comprehensive social listening policy that will give you insight into the sentiment surrounding your business. Many businesses have failed miserably in their engagements through social media. Understanding where conversation happen and how to react are key elements business in the digital age.