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Social media cases represent a ‘wild expansion’ of protected concerted activity
If you think your organization's social media policies are up to date and comply with current National Labor Relations Board (NLRB) rulings, make sure old versions of your policies aren't still circulating. These old versions may come back to bite, as Chipotle discovered in recent litigation.
The board's social media rulings are a "wild expansion" of protected concerted activity under the National Labor Relations Act (NLRA), said Phillip Wilson, president and general counsel with the Labor Relations Institute, a labor relations consulting firm in Broken Arrow, Okla. The rulings ultimately may be subject to challenge in federal appeals courts, he noted.
Nevertheless, many employers have adjusted their policies to comply with the rulings.
Even under the board decisions, employers still may monitor employee tweets, just not take action on social media postings that are protected concerted activity.
Tweets About Snow Days, Low Wages
An NLRB administrative law judge (ALJ) ordered the Chipotle restaurant chain on March 14 to rehire an employee who was fired two weeks after posting complaints about snow day policies on Twitter and immediately after distributing a petition on required breaks.
While reviewing employee Tweets, Chipotle's national social media strategist on Jan. 28, 2015, saw tweets posted by James Kennedy on working conditions for Chipotle employees in its Havertown, Pa., restaurant. Kennedy was a Chipotle crew member there, responsible for food preparation, serving food to customers, washing dishes and restocking supplies.
One of Kennedy's tweets included a news article concerning hourly workers having to work on snow days when other workers were off and public transportation was shut down. His tweet addressed Chris Arnold, the communications director for Chipotle, stating: "Snow day for 'top performers' Chris Arnold?"
In the other tweets, Kennedy replied to tweets posted by customers. In response to a customer who tweeted "Free chipotle is the best thanks," Kennedy tweeted "nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?"
Two managers—an area manager and the restaurant manager—met with Kennedy on Jan. 29, 2015, handed him Chipotle's social media policy and asked him to remove the tweets. Kennedy agreed to remove the tweets, and did so. The social media policy given to Kennedy was out of date, but it was the one that the national social media strategist provided to the area Chipotle manager.
Soon after this encounter, Kennedy began circulating a petition about meal and rest breaks required under state law. That February, the restaurant manager asked Kennedy to stop distributing the petition, and Kennedy said he would do so only if he was fired. He raised his voice at the restaurant manager (who testified before the ALJ that she felt intimidated). She fired him for insubordination, and Kennedy sued under the NLRA.
The ALJ ruled that Kennedy's tweets concerned wages and working conditions, which the NLRA protects.
"The issues raised in Kennedy's tweets are not purely individual concerns, pertaining only to Kennedy. He was not seeking a pay raise for himself, or requesting that he be excused from work when it snows heavily," the ALJ said. "Receiving low hourly wages and being required to report to work despite heavy snow are issues common to many of Chipotle's hourly workers nationwide, and certainly to those at the Havertown restaurant."
The ALJ concluded that Kennedy's postings were protected concerted activity covered by the NLRA.
Chipotle violated the NLRA when the area manager asked Kennedy to delete his tweets, the ALJ ruled. And the implicit suggestion not to post anything that would constitute protected concerted activity in the future was unlawful, according to the judge.
While Chipotle's current social media policy is lawful, the old version was not and that was the version distributed to Kennedy, the ALJ noted.
The ALJ struck down the following provisions in the old policy:
The prohibition against disclosing confidential information is problematic: "The undefined word 'confidential' is vague and subject to interpretation, which could easily lead employees to construe it as restricting their Section 7 rights" to protected concerted activity, the ALJ said.
Also, an employer may not prohibit employee postings that are merely false or misleading unless a malicious motive is shown.
The prohibition against disparaging statements could easily encompass statements protected by Section 7, as it is overbroad and might be construed to prohibit protected concerted activity, the ALJ said.
By contrast, the prohibitions against harassing or discriminatory statements do not violate the act, the judge found.
The ALJ also held that the company violated the NLRA by prohibiting an employee from circulating a petition challenging the company's break policy. And terminating Kennedy for circulating the petition violated the law.
Monitoring Employees' Tweets
However, employers do not have to turn a blind eye to employees bad-mouthing them on Twitter, according to Brian Garrison, an attorney with Faegre Baker Daniels in Indianapolis. "But employers must understand that the legality of disciplining employees for conduct viewed as 'bad-mouthing' depends on the nature of the employee's particular conduct," he said.
So, if an employee disparages the quality of the employer's product or service without relating it to any matter protected by the NLRA, that conduct likely is not protected and may result in discipline, Garrison explained. But if an employee complains about issues regarding wages, benefits or other working conditions (even while using profane language), the current board would likely view that conduct as protected, he added.
Workers do not have to use the words "union" or "unionize" to be protected, though often they do when unions are involved to improve the likelihood of success for an unfair labor practice charge, said Jim Gray of Jim Gray Consultants in Charleston, S.C. , which consults on union-organizing exposure.
Employers don't have to ignore anything posted on social media, Wilson said. "But any response should be measured and account for the board's position," he said.
"Certainly any posting that violates other rules—disclosure of trade secrets, HIPAA [Health Insurance Portability and Accountability Act] confidential information, or harassment—must be dealt with. That includes discipline up to and including termination," Wilson said.
"Pick your battles," Wilson recommended. "If you have a situation that is egregious, don't ignore it, even if you might end up with a board charge. Litigate the charge, but understand you may have to refuse to comply with a board order to reinstate someone and appeal that decision. This is an expensive proposition for a smaller company."
Chipotle did not reply to a request for comment.
This case is Chipotle Services LLC, 04-CA-147314.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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