On March 14, 2016, the popular chain, Chipotle Mexican Grill, was found to have violated the National Labor Relations Act (NLRA) when it asked an employee to delete posts on his Twitter account about the company.
Specifically, in Chipotle Services LLC d/b/a Chipotle Mexican Grill and Pennsylvania Workers Organizing Committee, a National Labor Relations Board (NLRB) administrative law judge determined that that the employee’s “tweets” constituted protected activity.
The opinion stated that Chipotle employed a “national social media strategist” whose job duties included monitoring employee social media postings in order to flag violations of company policy. The national social media strategist found a series of posts by the worker discussing his dissatisfaction with his employer. In one post, he complained that hourly workers were required to work on snow days. In another post, he responded to a customer who tweeted, ““Free chipotle is the best thanks,” with “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?”
At the social media strategist’s urging, the employee’s regional manager and store manager spoke with the employee about the Twitter posts during his shift at the Havertown, Pennsylvania Chipotle. After the employee acknowledged that he had written the posts, the managers asked him to delete them and provided him with an outdated copy of the company’s social media code of conduct.
The social media code of conduct provided to the employee, stated among other things,
If you aren’t careful and don’t use your head, your online activity can also damage Chipotle or spread incomplete, confidential, or inaccurate information. To avoid this, our Social Media Code of Conduct applies to you. Chipotle will take all steps to stop unlawful and unethical acts and behavior and may take disciplinary action, up to and including termination, against you if you violate this code or any other company policy, including Chipotle’s Code of Conduct.
You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.
The administrative law judge found that these provisions in the company’s outdated social media code of conduct were unlawful because they could limit Section 7 activities. Section 7 of the NLRA grants employees in all workplaces (regardless of whether employees are represented by a union) the right to engage in concerted activities for the purpose of mutual aid or protection. Employers are prohibited under Section 8 of the NLRA from restraining employees from exercising their Section 7 rights. In this case, the policy’s reference to “confidential,” “disparaging,” “inaccurate,” “false,” and “misleading” were overly broad or ambiguous terms that an employee could construe as limiting Section 7 activities.
The judge also found that Chipotle could be liable for terms in an old policy that was no longer in effect because the outdated policy had been distributed by the social media strategist on several occasions and because it formed the basis for the manager’s request that the employee remove his Twitter posts.
The judge also found that Chipotle’s request that the employee remove his Twitter posts constituted a violation of the NLRA. Because the Twitter posts related to working conditions—pay rates and being required to work on snow days—they qualified as protectable, concerted activity. Moreover, even though the manager did not discipline the employee or demand that he remove the posts, the judge found that the request was equivalent to an implicit order not to post about wages or working conditions on Twitter.
This case is a reminder that the NLRB is still on the lookout for overbroad social media policies and keen to remind employers that employees are free to discuss working conditions on all forms of social media.
If you’re looking for more information about how to craft a social media policy that is designed to meet the NLRB requirements, see our previous posts: