Let's say three of your employees engage in the following conversation on their personal Facebook pages:
Holli Thomas—needs a new job. I'm physically and mentally sickened.
Vanessa Morris—It's pretty obvious that my manager is as immature as a person can be and she proved that this evening even more so. I'm am [sic] unbelievably stressed out and I can't believe NO ONE is doing anything about it! The way she treats us in [sic] NOT okay but no one cares because everytime we try to solve conflicts NOTHING GETS DONE!! …
Vanessa Morris—And no one's doing anything about it! Big surprise!
Brittany [Johnson]—"bettie page would roll over in her grave." I've been thinking the same thing for quite some time.
Vanessa Morris—hey dudes it's totally cool, tomorrow I'm bringing a California Worker's Rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that's going on that's in violation 8) see you tomorrow!
Can you fire these three employees? If you answered yes, you just bought yourself an unfair labor practice charge with the National Labor Relations Board, at least according to Bettie Page Clothing (4/19/13) [pdf]. Per the NLRB:
The Facebook postings were complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management's refusal to address the employees' concerns. The employees also discussed looking at a book about the rights of workers in California so that they could determine whether the Respondent was violating labor laws. Such conversations for mutual aid and protection are classic concerted protected activity.
Social media is today's water cooler. Employees still might gather around the lunch table or coffee machine to gossip about work, but they are also just as likely, if not more likely, to carry over those conversations outside of the workplace through their personal social media accounts. If you wouldn't fire an employee for a water-cooler conversation you happen to overhear, then don't fire them for a similar conversation on a Facebook wall. In fact, you are much worse off with the social-media-based termination because the employee has a digital paper trail with which to hang you.
Employees gossip with and gripe to each other. Instead of firing these employees, maybe you need to look inward to figure out if their concerns are legitimate, and if there is something you can do about it.