Cole-Rivera and the other fired workers have pinned their hopes on an exception to that rule: the protection, in the National Labor Relations Act, of workers' right to engage in "concerted activities" for "mutual aid or protection."
In earlier pre-Facebook cases, the NLRB considered several factors in deciding which speech counts as collective action: whether multiple workers were involved in the discussion in question, whether it related to work conditions, whether it was unacceptably disloyal or malicious, and whether it was intended to instigate activism. "Sometimes griping is the incipient stages of 'Let's do something about it,' " says former NLRB Chair Wilma Liebman. Other times, it's "just griping."
Cole-Rivera says that before she posted on Facebook, she found out her co-worker planned to complain to management about the work ethic of the employees in her organization. She argues she engaged in "concerted activity" by alerting and agitating her co-workers to the upcoming complaint. The idea is that by sacking workers for having the conversation, HUB cracked down on their right to band together to address their workload or defend themselves against potential discipline.
The NLRB will also soon hear appeals on two other related cases. In one, a bartender at Triple Play Sports Bar complained on Facebook that her boss had messed up her tax withholding, and a cook pressed "like" on her unprintable comment. Both were fired. A judge found that both the comment and the "like" were concerted activity and rejected Triple Play's claim that the thread forfeited legal protections just because a couple customers weighed in as well.
In the other case, car salesman Robert Becker said he was fired for posts making fun of the cheap food served at a launch event where he worked. His boss said he terminated Becker for other posts, which mocked an accident at an adjoining dealership in which a 13-year-old drove a Land Rover into a pond. The judge found that posting about the food was protected concerted activity. That's because employees had been discussing them together at work, and if skimping on snacks hurt sales, workers' commissions would suffer too. But the judge upheld the firing based on Becker's boss' testimony that the Land Rover posts, which weren't protected, were the ones that cost him his job.