Employees' Legal Rights to Talk About Work on Social Media
NOTE: The Social Media Guide provided by IATSE can be accessed by clicking here.
To: Unions at Universal Studios
From: Michael Weiner and Jay Smith
February 19, 2013
Your members recently participated in a training session on the Company's respectful workplace policies. Since then, there has been a lot of discussion about what rights your members have as employees of Universal Studios Hollywood to discuss work-related issues on social media such as Facebook and Twitter.
In general, union members -- and all employees -- have the right under federal law to discuss their working conditions, pay or benefits with fellow employees, whether those discussions are in-person, by phone, or on social media. In short -- your members do have the right to use Facebook and Twitter to discuss with their fellow Universal workers any topics involving their working conditions, pay or benefits, even though the Company might say otherwise. This right is protected by the National Labor Relations Board (NLRB), a federal government agency. It is unlawful for the Company to discharge employees, write employees up, or otherwise discipline employees -- or even warn employees -- for exercising your right to discuss such topics with fellow employees, on Facebook or elsewhere. It is also unlawful for the Company to have a policy that is contrary to this right.
But beware. There are some limitations on this right that everyone should understand. Some communications on social media are not protected by federal law, even when they are connected to the workplace. Here are five things to keep in mind when advising members on their rights to talk about the workplace on social media:
First, the communication may not simply be an individual "gripe." It must be designed either to rally other Universal employees to join together to address a workplace issue or to seek advice or assistance from other employees or the Union on dealing with a workplace issue. Consider the following hypothetical Facebook postings, none of which would he protected under actual NLRB decisions:
NOT PROTECTED; EMPLOYEES CAN BE DISCIPLINED FOR POSTS LIKE THESE:
- "What's with all these rednecks who come to Universal Studios?"
- "F--- Universal Studios!"
- "I hate Universal Studios and everyone who works there! I wish people would just leave me alone!"
- "My co-worker is sucking on his teeth. It's so annoying!"
None of these statements 1-4 above would be protected by federal law because they are nothing more than individual complaints or "venting." They do not directly seek advice or assistance from other employees about dealing with workplace issues. Accordingly, in all these examples just listed, Universal could lawfully discipline the employee who posted, although that does not automatically mean that Universal could discharge or otherwise harshly discipline an employee under our contract's "just cause" provision -- that depends on the particular facts.
In contrast, consider these hypothetical postings, also based on actual NLRB decisions, which would likely be protected by federal law and by our contract's "just cause" provision:
PROTECTED: UNIVERSAL CANNOT LAWFULLY DISCIPLINE EMPLOYEES FOR POSTS LIKE THESE:
- "[First Employee's Facebook Status]: Joe Smith, supervisor (or Jane Doe, co-worker), thinks we don't work hard enough at Universal. I about had it! Fellow coworkers, how do employees feel?"
[Second Employee's Responsive Comment]: What the f... Trying to do my job.
[Third Employee's Responsive Comment]: What the hell? We don't have a life as is. What else can we do???
[Fourth Employee's Responsive Comment]: Tell him to come do my f---ing job!"
- "I can't believe they took away my lead position! Universal Studios messed up and I'm done being a good employee."
- "Today was a bad day. My coworker got fired because she asked for help and I got yelled at for caring."
- "I can't believe Sue got promoted to assistant lead and not me! She doesn't do any work. Universal doesn't know how to tell people they do a good job."
- [In response to a Facebook discussion about "drama" at work and a coworker being unfairly disciplined]: It's our supervisor who causes all the drama!"
Unlike the examples in Nos. 1-4 above, these comments 5-9 actually raise concerns about specific workplace issues and -- at least implicitly -- seek assistance or input from fellow employees. The NLRB has held that the posting employee's statement, or some other context, must show that help or input from other employees is being sought. But this showing need not be direct or explicit in the message -- it can be made indirectly or implicitly by looking at the message or some background facts, and still thereby achieve legal protection against discipline or the threat of discipline. Note, however, that no. 6 above is not smart: if the posting employee is later accused of not doing his or her job properly, it could be evidence that he or she has stopped trying, and the post could be evidence to support discipline for job performance problems, even though the employee can't be disciplined for the post itself. So, members should be careful even when exercising their legal rights.
Second, and related, the communication must be "concerted," meaning that it must be intended to reach fellow employees of the Company or intended to reach the Union (which, after all, is a collective of all our members working together), either to seek advice or assistance or to initiate group action to address a workplace problem. If employees post a comment about a workplace issue on Facebook, but they are not "friends" with any of their co-workers or the Union, then the communication cannot be considered "concerted" and would not be protected. A textbook example of a concerted, protected comment would end, like Example No. 5 above, with a statement such as "Fellow coworkers, how do employees feel?" or "Fellow coworkers, we must do something about this mistreatment!" Such a statement helps to achieve legal protection, but again, the employee's concerted intent may be inferred or implied if necessary to still achieve legal protection.
Third, the communication must be about working conditions, pay or benefits. These are "protected" topics, meaning employees can discuss them. They include many things -- wages, benefits, , insurance, pensions, hours, work assignments, vacation approval, scheduling, discipline, workplace policies, supervisors, etc. Working conditions can also include other problems caused by the Company that affect our ability to do our jobs -- for example, the closing of roads or parking lots to accommodate a special event at the theme park. But there are limits to what is considered a working condition. Complaining that employees don't like The Simpsons ride when the quality of the ride has no effect on your job is not a communication about working conditions.
Fourth, the communication should not disparage the Company's products or services to people outside the Company. Public criticism of the quality of a ride or attraction when that criticism does not relate to working conditions, as in The Simpsons example above, is not protected by federal law. This is because employers are entitled to expect that their employees will cast their services or products in a positive light when communicating with potential customers and the public. Although your Facebook posts may only he accessible to your "friends," Facebook and other social media are considered public forums since most people have many "friends" who are not coworkers. Even if the other requirements are satisfied, bashing the Company's services or products can deprive employees of legal protection and get employees disciplined.
Finally, the communication must not be excessively vulgar or profane and it must not appeal to bigotry or prejudice, or threaten violence (or even refer to the possibility of it). The mere use of curse words is not enough to strip an otherwise permissible statement of the protection of federal law. In fact, the NLRB understands that in the real world, people don't always use the most polite language. Nevertheless, our members should always be careful about the way they say things on social media, recognizing that individuals other than their Facebook "friends" and Twitter "followers" are likely to see what they post and that their "friends" on Facebook are not necessarily restricted to only their friends in real life. Excessive profanity, particularly when directed at a specific individual (e.g., "So-and-so is a f---ing b----!"), may cause a statement to lose the protection of federal law. Threats of, or references to, violence, even vague or joking, or the use of stereotypes or ethnic slurs will almost certainly remove any protection that an online comment would otherwise have.
And remember -- just because federal law might not protect certain speech does NOT mean that Universal can get away with firing someone or imposing other harsh discipline for any particular social media posting. We have a collective bargaining agreement that requires Universal to prove "just cause" for any discipline. That means both that the posting itself is not protected and can be the subject of any discipline, and that the "punishment fits the crime" - that the level of discipline is appropriate. "Just cause" under our contract is a case-by-case analysis. But why would anyone choose to engage in conduct that can lawfully result in any discipline?
Social media is a powerful tool for connecting us with other people -- and to discuss and take action on important issues in our own lives and in the world around us. Our members have the right to use this tool to improve their working conditions, pay and benefits as long as they do so carefully and intelligently. The watchword is:Be informed but don't be afraid!
NOTICE: THIS MEMORANDUM IS TO UNIONS AND IS NOT LEGAL ADVICE TO ANY INDIVIDUAL MEMBERS OF ANY UNION. MICHAEL WEINER AND JAY SMITH REPRESENT THE UNIONS ONLY. INDIVIDUAL MEMBERS WHO SEEK LEGAL ADVICE FOR THEMSELVES SHOULD CONSULT ATTORNEYS OF THEIR OWN CHOOSING.
When in doubt, contact the Union Office (818) 509-9192 or Info@B192iatse.org