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NLRB Continues to Target Employers' Social Media Policies

3.28.2016

In recent years, the National Labor Relations Board has placed increasing scrutiny on employers' social media policies. The NLRB has specifically focused on whether such policies unlawfully interfere with employees' right under Section 7 of the National Labor Relations Act to engage in "protected concerted activities" for the purpose of their mutual aid and protection. This issue was addressed yet again in the case of Chipotle Services LLC. In a decision issued on March 14, 2016, the NLRB administrative law judge concluded that Chipotle's social media policy, and its application of that policy towards an employee who posted tweets on social media regarding wages and working conditions, violated the NLRA. Because Section 7 applies to all employers meeting the jurisdictional requirements of the Act (not just unionized workplaces), the impact of the Chipotle case is potentially far reaching.

The case concerns the activities of Chipotle employee James Kennedy, who worked as an hourly food server at the company's Havertown, PA restaurant. Kennedy posted tweets about a news article regarding hourly workers having to work on snow days when other employees were off and public transportation was shut down. His tweet sarcastically addressed Chipotle's communication director Chris Arnold by name, stating: "Snow day for 'top performers' Chris Arnold?" In response to a customer who tweeted "Free chipotle is the best thanks," Kennedy tweeted: "nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?" Kennedy also tweeted in response to a customer about guacamole: "it's extra not like #Qdoba [referring to Chipotle's competitor], enjoy the extra $2."

Chipotle's national social media manager read the tweets and requested area management to ask Kennedy to delete them and discuss the company's social media policy with him. Kennedy agreed to remove the tweets. Interestingly, the social media policy shown to Kennedy at that time was an outdated version that had already been replaced by the company and was no longer in effect. The outdated policy included language which stated: (1) employees may not share "confidential information" online or anywhere else; and employees may not share "confidential information" online or anywhere else; and (2) employees may not make "disparaging, false, misleading, harassing, or discriminatory statements" about Chipotle or its employees.

The NLRB judge found that the provision in the policy prohibiting disclosure of confidential information could "easily lead employees to construe it as restricting their Section 7 rights" because the term "confidential" was undefined and vague. Therefore, that provision violated the NLRA. The judge further concluded that the policy's prohibition against making disparaging, false, or misleading statements about Chipotle or its employees also violated the NLRA because: (1) false and misleading statements must be malicious in order to lose the Act's protection, and (2) disparaging language "could easily encompass statements protected by Section 7, and the Board has found rules prohibiting derogatory statements to be unlawful." However, the judge found that the policy's prohibition against harassing or discriminatory statements did not violate the NLRA.

As for Chipotle's request that Kennedy delete the tweets, the judge concluded that the company violated the NLRA by making that request - even though Kennedy was not specifically directed to do so or disciplined as a result of his tweets. The judge found that the company's request "amounted to an order from a higher level manager," and that it "implicitly directed [Kennedy] not to post similar content in the future." The judge cited Board caselaw holding that an employer violates the NLRA when it maintains a work rule that "reasonably tends to chill employees in the exercise of their Section 7 rights."

The remaining issue concerned whether Kennedy's tweets, which did not involve any interaction directly with coworkers, could even rise to the level of protected and concerted activity for the purpose of those employees' mutual aid and protection under Section 7. The judge found that Kennedy's individual social media activity was concerted because his tweets were "visible to others" and had the purpose of "educating the public and creating sympathy and support for hourly workers in general and Chipotle's workers in specific." The judge further concluded that Kennedy's tweets were for the mutual aid and protection of employees because they concerned "the workplace or employees' interests as employees."

The Chipotle case clearly reflects the NLRB's aggressive stance towards employer use of social media policies in the workplace. Given the Board's willingness to broadly construe the meaning of "protected and concerted activity" and to grant protection under Section 7 to a wider range of employee statements on social media, employers must exercise caution in how such statements are now addressed. Social media policies should be specific as to the nature of confidential or proprietary information which should not be discussed by employees on social media, while also being more tolerant of views that may be negative and perhaps even derogatory of the employer and its employees. Given the emerging trend towards greater scrutiny of such policies which can result in back pay liability and other remedies under the NLRA, employers are well advised to seek legal counsel for assistance in implementing or revising its work rules regarding social media.

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