A National Labor Relations Board (NLRB) judge just issued a notable decision in Chipotle Services LLC for employers grappling with social media invading the workplace.
Former Chipotle employee, James Kennedy, aired his grievances on his personal twitter account. For example, in response to a tweet posted by a customer saying “Free chipotle is the best thanks”, he tweeted “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” Kennedy replied to another customer’s tweet regarding guacamole: “it’s extra not like #Qdoba, enjoy the extra $2.”
On January 28, 2015, Shannon Kyllo, Chipotle’s National Social Media Strategist found Kennedy’s tweets. Kyllo sent the tweets to Kennedy’s manager and asked him to tell Kennedy to delete the tweets and discuss the social media code of conduct with him.
When confronted with the tweets, Kennedy admitted they were his. Kennedy was provided a copy of the Company’s social media policy to review, noted he was familiar with the policy, and agreed to delete the tweets.
Subsequently, Kennedy was terminated for an unrelated incident after he had a dispute with a manager regarding his circulation of a petition regarding work breaks.
The NLRB judge ruled that the social media policy provided to Kennedy contained several unlawful provisions that violated Section 8(a)(1) of the National Labor Relations Act (which provides it is an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the Act). In particular, the Judge found unlawful prohibitions against spreading incomplete, confidential, or inaccurate information and those against making disparaging, false or misleading statements.
In addition, the Judge found that Chipotle violated Kennedy’s Section 7 rights by having him delete his tweets, which she viewed as “protected concerted activity” under the Act. Importantly, the fact that Kennedy was not engaging with any other employee when he tweeted and no employee engaged with him after he tweeted did not have any impact on the finding that his conduct was “concerted”:
All these postings had the purpose of educating the public and creating sympathy and support for hourly workers in general and Chipotle’s workers in specific. They did not pertain to wholly personal issues relevant only to Kennedy but were truly group complaints.
This decision provides another reason for employers to review their social media policies, procedures, and enforcement efforts to ensure they do not run afoul of employees’ NLRA rights.
Contributed by Courtney Nichols, Plunkett Cooney's Labor and Employment Law Practice Group Leader.
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