On March 14, 2016, Administrative Law Judge Susan A. Flynn from the National Labor Relations Board (NLRB)  ruled that Chipotle had violated Section 8(a)(1) of the National Labor Relations Act (NLRA) when it asked an employee to delete some of his tweets about employees’ wages or other terms and conditions of employment. The case is Chipotle Services LLC d/b/a Chipotle Mexican Grill.

Chipotle operates a nationwide chain of restaurants, and the employee who had posted the tweets at stake worked for one of Chipotle’s restaurants in Pennsylvania. While working there, he posted several tweets which attracted the attention of his employer’s national social media strategist, whose responsibility was to review social media postings made by employees in violation of Chipotle’s social media policy.

The employee’s tweets commented on the hourly wage offered by Chipotle and on the fact that employees had to go to work on snow days. The regional manager was informed about these tweets by the social media strategist.  He came to the restaurant where the employee worked, showed him Chipotle’s social media policy and asked him to delete the tweets, which he did. However, the manager relied on an outdated social media policy, which had been forwarded to him by the social media strategist.

Later on, the employee circulated a petition asking the restaurant where he worked to stop denying breaks to employees, which he alleged was then occurring regularly. Following a testy conversation with his manager about the petition, he was asked to leave the premises, and was eventually fired. I will only discuss in this post the issue of the unlawfulness of asking the tweets to be deleted.

The outdated social media policy was unlawful

After the fast food worker’s Union filed the complaint, Chipotle moved for summary judgment, arguing that allegations based on an outdated social media policy are moot. However, Judge Flynn denied the motion, as the outdated policy may have played a role in the actions taken against the employee.

The two challenged provisions of the outdated social media policy were:

“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.”

“You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.”

The policy informed employees that violating these rules may lead to disciplinary actions, including termination.

However, Section 8(a)(1) of the NLRA prohibits employers “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [of the NLRA].” Under Section 7, employees, whether they belong to a union or not, have the right to engage in “concerted activity for the purpose of collective bargaining or other mutual aid or protection,” NLRA §7, 29 U.S.C. §157.

Judge Flynn quoted the NLRB Lafayette Park Hotel 1998 case and the NLRB Lutheran Heritage Village-Livonia 2004 case to explain that under NLRB case law, an employer violates Section 8(a)(1) “when it maintains a work rule that reasonably tends to chill employees in the exercise of their Section 7 rights.” Indeed, the NLRB considers that a work rule violates Section 8(a)(1) if it explicitly restricts activities protected by Section 7 or if the challenged rule is such that: (1) employees would reasonably construe its language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.

In this case, the challenged social media policy did not explicitly prohibit Section 7 activity, but Judge Flynn found that employees would reasonably construe portions of the policy to restrict their rights under Section 7.

Prohibiting false, misleading, inaccurate and incomplete statements is unlawful

Judge Flynn found the provisions of the social media policy which prohibited spreading false or misleading statements to be unlawful. Such statements only lose their NLRA protection if the employee had a malicious motive in making these statements, meaning that the employee knew these statements were false, or that the employee had reckless disregard for their truth or falsity.

Prohibiting disclosing confidential information is unlawful

Judge Flynn noted that the social media policy did not define “confidential” and thus the word is “vague and subject to interpretation, which could easily lead employees to construe it as restricting their Section 7 rights.”

Prohibiting disparaging statements is unlawful

As for “disparaging,” Judge Flynn noted that prohibiting disparaging statements “could easily encompass statements protected by Section 7” and that the NLRB “has found rules prohibiting derogatory statements to be unlawful.” Judge Flynn quoted the recent Costco Wholesale Corp. case, where the NLRB determined in 2012 that a rule prohibiting speech “that damage the Company, defame any individual or damage any person’s reputation” was overbroad and thus violated the NLRA. Judge Flynn concluded that “[t]hus, disparaging statements would reasonably be construed to include matters protected by Section 7.”

Prohibiting harassing or discriminatory statements is lawful

However, Judge Flynn did not find that the prohibiting harassing or discriminatory statements violated the NLRA, as the NLRB does not consider such statements to be unlawful, even if they could be interpreted by an employee to apply to activities protected by Section 7.

Disclaimer does not cure unlawfulness of the social media policy

Chipotle’s social media policy ended with this disclaimer:

“This code does not restrict any activity that is protected or restricted by the National Labor Relations Act, whistleblower laws, or any other privacy rights.”

However,” [t]hat sentence does not serve to cure the unlawfulness of the foregoing provisions” according to Judge Flynn, citing Allied Mechanical, 349 NLRB 1077, 1084 (2007).

It was illegal to ask the employee to delete the tweets, because there were concerted activities

Section 7 of the NLRA protects the employee’s right to engage in concerted activities for the purpose of mutual aid or protection.

The tweets posted by the Chipotles’ employee were concerted activities under Section 7. They addressed working conditions and salaries at the restaurant, and “[w]ages and working conditions are matters protected by the [NLRA].”

The tweets were concerted activity even if the employee had not consulted his colleagues before posting them because they sought to initiate, to induce or to prepare for group action, or could be considered to be complaints brought to the attention of management. Also, the tweets were for the purpose of mutual aid or protection, as there was a link between the activity and the matters concerning the workplace or employee’s interests as employees.

Judge Flynn concluded that since the tweets were concerted activities, asking the employee to delete them violated Section 8(a)(1). Also, the judge found that management had implicitly directed the employee not to post similar tweets in the future, and thus had prohibited an employee from engaging in protected concerted activity.

Judge Flynn ordered Chipotle to “[c]ease and desist from directing employees to delete social media postings regarding employee wages or other terms or conditions of employment [and from] [p]rohibiting employees from posting on social media regarding employee’s wages or other terms or conditions of employment” and to further maintain social media policies limiting unlawfully employee’s rights to engage in Section 7 activity.

Judge Flynn also ordered Chipotle to rehire its former employee and to compensate him for any loss or earnings or benefits suffered as a result of his discrimination.

Photo is courtesy of Flickr user Sandy under a CC BY 2.0 license.

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