As part of a larger legal claim, the National Labor Relations Board (“NLRB”) issued a ruling that provides further guidance regarding employee tweets and an employer’s social media policy. On August 18, 2016, the NLRB issued its ruling on a case involving a former employee of Chipotle Mexican Grill in Pennslyvania. Employers should review this case when considering revisions to their social media policies.
James Kennedy was a crew member at a Havertown, PA restaurant and, according to the NLRB, was responsible for food preparation, serving food to customers, washing dishes, and restocking supplies. In January 2015, one of Chipotle’s employees was responsible for reviewing employees’ social media posts for violations of company policy. On January 28, 2015, this employee saw tweets from Kennedy regarding the working conditions of Chipotle’s employees. Specifically, one of Kennedy’s tweets was in response to a news article about certain workers working on snow days while other workers were provided the day off and that public transportation was closed. Kennedy tweeted: “Snow day for ‘top performers’ Chris Arnold?” (Chris Arnold was Chipotle’s communications director).
In two other tweets, Kennedy replied to customers who had posted. For instance, one customer tweeted “Free chipotle is the best thanks”. Kennedy replied “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” And, he replied to another customer who had posted about guacamole by tweeting “it’s extra not like #Qdoba, enjoy the extra $2”. The NLRB noted Kennedy was referring to “the fact that, unlike the restaurant chain Qdoba, Chipotle charges extra for guacamole.”
The day after the Chipotle employee saw Kennedy’s tweets, Chipotle met with Kennedy and discussed one version of Chipotle’s social media policy with Kennedy. Chipotle also asked Kennedy to remove his tweets, and Kennedy did so later that day. About a month later, Kennedy was fired for reasons unrelated to his tweets.
Analysis of Kennedy’s Tweets
The NLRB Administrative Law Judge (“ALJ”) hearing the case eventually found that Chipotle’s actions requiring Kennedy to take down his tweets violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”). In sum, this is so because the ALJ found that Kennedy’s tweets constituted “protected, concerted activity” under Section 7 of the NLRA. Generally, to be considered “protected, concerted activity” the actions must be concerted and done for “mutual aid or protection.”
Here, the ALJ acknowledged that Kennedy appeared to act alone when he posted his tweets (for example, he did not consult with other employees or request their assistance or support). The ALJ also determined that Kennedy’s tweets “did not pertain to any current dispute between Chipotle’s employees and its management.” Despite these circumstances, the ALJ stated that Kennedy’s tweets were “visible to others,” and that Kennedy’s tweets about employee wages and guacamole prices were “truly group complaints.” In support of its decision, the ALJ stated that Kennedy’s tweets “had the purpose of educating the public and creating sympathy and support for hourly workers in general and Chipotle’s workers in specific.”
As a result, the ALJ found that Chipotle had violated the NLRA with respect to Kennedy’s tweets.
On Appeal The Board Reversed the ALJ’s Ruling About Kennedy’s Tweets
Thankfully in its August 18, 2016 decision, the Board rejected the ALJ’s reasoning regarding the tweets. The Board ruled that Kennedy’s tweets were not concerted activity. As a result, Chipotle could not have violated the NLRA when it directed Kennedy to delete his tweets. While the Board did not provide analysis to support its decision, it is a good result for employers. Had the ALJ’s original determination remained unchanged, almost any tweet or social media post that is “visible to others” and that mentions conditions of employment, would have been protected activity under the NLRA.
Key Takeaways For Employers
First, the NLRB not only examined Chipotle’s social media policy, but also its policies on a) Solicitation, b) Confidential Information, c) Ethical Communications, and d) Political/Religious Activity and Contributions. What this means is that employers should not just focus solely on their social media policies, but many other ancillary policies are related and will become relevant should the government or an employee bring a claim.
Second, one of Chipotle’s problems here was that when it met with Kennedy, it relied on an older version of the company’s social media policy. The company had an updated policy, but unfortunately, it was not applied to Kennedy though it should have been.
Third, the employer escaped liability here regarding the tweets in question. But employers must take care when taking action against employees based on tweets and social media activities that concern the workplace. An analysis of such activities should be done, and employment counsel should be consulted.
DISCLAIMER: Information provided on this website is not legal advice. It does not create an attorney-client relationship. Nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.