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Employers must carefully word social media policies so they aren't unlawfully vague and must ensure that employees are receiving the most up-to-date social media policies, according to a recent National Labor Relations Board (NLRB) decision.
The distribution of an outdated social media policy at Chipotle Mexican Grill violated the National Labor Relations Act (NLRA), the NLRB decided Aug. 18. Unlike its up-to-date policy, the outdated policy prohibited employees from using their private social media sites to post incomplete, confidential or inaccurate information about their workplace, or from making disparaging, false or misleading statements about the company.
On Jan. 29, 2015, a Chipotle area manager handed an old social media policy to a Havertown, Pa., employee, who had used his personal Twitter handle to tweet about the denial of snow days to front-line employees and to tweet about the restaurant's guacamole costing extra. The manager asked the employee to remove the tweets, which he did.
While the board ruled that giving the old social media policy to the worker violated the NLRA, it decided that asking the employee to delete the tweets did not violate the law, as the tweets did not involve protected, concerted activity.
"Companies and people share outdated policies all the time," said Michael Lotito, an attorney with Littler and co-chair of its government relations branch, the Workplace Policy Institute.
"Employers should consider keeping a written record of all policy revisions and apply effective dates to their policies," said Ken Yerkes, an attorney with Barnes & Thornburg in Indianapolis. "Also, requiring employees to annually review the company handbook or workplace rules, and to sign an acknowledgement of their understanding of it, can go a long way in preventing such a problem."
The use of "confidential" or "inaccurate" in the old social media policy should have tipped off the Chipotle manager that it wasn't the current policy, as these terms are never put in social media policies anymore, said Jim Walters, an attorney with Fisher Phillips in Atlanta.
"Despite the best efforts of HR professionals, it is fairly common for managers and supervisors to refer to and rely on outdated policies," noted Joseph Bryan, an attorney at Taylor English in Atlanta. "If policies are maintained electronically—for example, on a company intranet—it is easier to ensure that only current policies are available. For many workplaces though, maintaining policies only in an electronic format is not feasible."
The NLRB relied on Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), in affirming an administrative law judge ruling earlier this year that the distribution of Chipotle's old policy violated the NLRA.
Bryan explained that in Lutheran Heritage, the board set out a three-part test for when an employer's rule will violate the NLRA:
Bryan noted that recent board decisions have applied the first prong of the Lutheran Heritage test expansively and have found that employer rules previously considered "perfectly ordinary" violated Section 7. "Many would argue that the current board applies the 'reasonably construe' test to find violations whenever a rule 'could conceivably be read to cover Section 7 activity,' " he said.
Posting false information on social media sites is lawful under the board's ruling, unless the falsehood is shared maliciously, Lotito observed. "Malice" suggests that the employee knew the information was false, he explained.
Suppose an employee tweets that the reason why someone didn't get a promotion was because of a supervisor's unlawful bias. As long as the employee perceived that to be the case, the posting is permissible and should not result in discipline. But if the employee knew that the real reason was because of persistent warnings about tardiness, and the tweeting worker was just trying to "get even," subsequent discipline would be all right, Lotito said.
Confidential information was not defined by Chipotle's old policy. The administrative law judge said that language prohibiting the posting of confidential information was too vague and that employees could read it as restricting their Section 7 rights, and the NLRB affirmed this finding.
An employee might interpret the policy as unlawfully saying that sharing compensation information with other employees and nonemployees, such as a union organizer, would violate company policy. "Employers need to use very specific language focused on very specific behaviors to survive the vague-and-ambiguous test the NLRB uses to invalidate rules," Lotito said.
"Broad prohibitions on 'confidential' discussions, 'disparaging' remarks or a requirement that posts be 'positive' are surefire ways to draw the NLRB's ire," said Alex Stevens, an attorney with Haynes and Boone in Dallas.
Policies won't be spared by the NLRB simply because they include disclaimers noting that the NLRA supersedes policies.
Yerkes noted that Chipotle's old social media policy included a disclaimer that said, "This code does not restrict any activity that is protected or restricted by the National Labor Relations Act, whistle-blower laws or any other privacy rights."
Neither the administrative law judge nor the board found this disclaimer to shield the company from the unlawfulness of its old policy.
This decision is Chipotle Services LLC, 364 NLRB No. 72 (2016).
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