Earlier this year, we discussed that a National Labor Relations Board (NLRB) administrative law judge found that an employee’s tweets could be considered protected “concerted activity” in Chipotle Services LLC d/b/a Chipotle Mexican Grill. As a reminder, the administrative law judge determined that portions of Chipotle’s outdated Social Media Code of Conduct policy violated the U.S. National Labor Relations Act (NRLA). The judge also found that Chipotle’s request that the employee remove his Twitter posts (i.e. “tweets”) also violated the NLRA. On August 18, 2016, a three-member panel of the National Labor Relations Board (NLRB) affirmed that Chipotle’s Social Media Code of Conduct violated the NLRA, but the NLRB reversed the administrative law judge’s finding related to the Twitter posts.
As we discussed in previous posts, Section 7 of the NLRA guarantees employees to right to engage in collective bargaining and other concerted activities for the purpose of mutual aid or protection. Section 8 prohibits employers from interfering with or restraining employees’ right to engage in concerted activities protected under Section 7. If an employee’s social media posts are determined to be concerted activities under Section 7, then the NLRB has decided that an employer violates the NLRA by asking the employee to remove the posts.
Chipotle had provided the employee with an outdated Social Media Code of Conduct that prohibited employees from posting “incomplete, confidential, or inaccurate information” and from making “disparaging, false, misleading, harassing or discriminatory statements” on social media platforms. The NLRB panel confirmed that this sort of broad social media policy language runs afoul of the NLRA because it interferes with workers’ right to discuss the terms and conditions of their employment.
The Board, however, reversed the administrative law judge’s finding that the employee’s tweets constituted concerted activity. One of the tweets in question responded to a tweet by a customer’s post, “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?” The NLRB determined that this tweet was not concerted activity because it appeared “unrelated to employees’ terms and conditions of employment, and thus was not for the purpose of mutual aid or protection.” Although this and other Twitter posts referenced wages and other working conditions—such as the lack of snow days for some hourly employees—two members of the NLRB who heard the appeal did not consider the tweets to be concerted activity.
Chipotle Services confirms that the NLRB is critical of broad social media policies that may conflict with workers’ right to discuss the terms and conditions of their employment on social media. This decision also leaves open the possibility that it is unlawful for employers to ask their employees to delete certain social media posts. The decision may slightly restrict the scope of complaints on social media that will be construed as concerted activity.
Although companies should not enact social media policies that broadly prohibit all employees from making any disparaging remarks on social media, the NLRB does not construe all tweets as concerted activity. To be prudent, employers should carefully craft their social media policies and to train managers not to restrict employees from discussing the terms and conditions of their employment on social media.
If you would like more information about drafting a social media policy, see our previous blog posts: