By Dave Strausfeld, J.D. The Chipotle restaurant chain violated Section 8(a)(1) of the NLRA when it asked an employee at one of its restaurants to delete his Twitter comment about a Chipotle free offer stating “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” ruled an NLRB ALJ. The company was ordered to cease and desist from prohibiting employees from posting on social media regarding employees’ wages or other terms or conditions of employment (Chipotle Services LLC dba Chipotle Mexican Grill, March 14, 2016). Twitter postings. Chipotle’s national social media strategist, whose job responsibilities included reviewing employee’s social media postings for violations of company policy, saw a tweet posted by an employee of a Chipotle Mexican Grill restaurant in Havertown, Pennsylvania. In response to a customer who had tweeted “Free chipotle is the best thanks,” the employee had said, “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” The social media strategist emailed the regional manager for the Haverford location, forwarding the tweet. The next day, the restaurant’s general manager approached the employee in the kitchen and said she wanted to talk to him in the dining room. They went out and sat with the regional manager, who asked the employee if he was familiar with the company’s social media policy. The employee said he was and ultimately agreed to delete the offensive tweet, which he did later that day. (Sometime later, he was fired after circulating a petition complaining that employees were not being given mandated breaks.) Chipotle’s social media policy unlawful. A union seeking to organize fast food workers filed an unfair labor practice charge. The ALJ first addressed whether the company’s social media policy was lawful. Two sections of the social media policy were being challenged. One said, “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.” The other stated, “You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.” “False,” “misleading,” “incomplete,” or “inaccurate.” The policy’s prohibition of false, misleading, incomplete, or inaccurate social media postings violated Section 8(a)(1), the ALJ determined, citing Lafayette Park Hotel. An employer may not prohibit employee postings that are merely false or misleading. Rather, in order to lose the NLRA’s protection, it must be shown that the employee had a malicious motive in posting the material. “Confidential.” The bar against disclosing confidential information was also unlawful here because the social media policy did not define “confidential.” While the company certainly had a valid interest in protecting private company information, the undefined word “confidential” was vague and subject to interpretation, which could easily lead employees to construe it as restricting their Section 7 rights. “Disparaging.” Nor could the company ban employees from posting “disparaging” social media comments. The prohibition against disparaging statements could easily encompass statements protected by Section 7, as the Board indicated in Southern Maryland Hospital Center, which involved statements that were “derogatory” (a synonym for “disparaging”). Disclaimer not enough. Although the company’s social media policy did contain a 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”— that sentence was not sufficient to cure the unlawfulness of the other provisions, the ALJ ruled, citing Allied Mechanical. Shouldn’t have asked him to delete tweets. The employee’s tweets here were protected concerted activity because they had the purpose of “educating the public and creating sympathy and support” for hourly workers in general and Chipotle’s workers in specific, the ALJ noted. The tweets did not pertain to wholly personal issues relevant only to the employee but were truly group complaints. The ALJ ordered the company to cease and desist from its Section 8(a)(1) violations. Chipotle was also ordered to reinstate the employee and reimburse him for his lost wages.
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