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Social media cases represent a ‘wild expansion’ of protected concerted activity
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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 The social media policy given to Kennedy was out of date, but it was the one that the national social media strategist provided to the area Chipotle manager.
The social media policy given to Kennedy was out of date, but it was the one that the national social media strategist provided to the area Chipotle manager.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.
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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