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"How Much is that Steak Bowl Really?" A Costly Reminder About Social Media Policies

3/21/16

By: Robert Krandel

On March 14, 2016, an Administrative Law Judge for the National Labor Relations Board ruled that Chipotle violated the National Labor Relations Act when it unlawfully forced an employee to delete negative tweets about the restaurant. The Chipotle employee, James Kennedy, worked at the Havertown, Pennsylvania Chipotle.  Kennedy posted derogatory tweets about Chipotle’s “cheap labor”. He further tweeted, “crew members only make $8.50hr how much is that steak bowl really?”

In a ruling which is not a surprise to labor law practitioners, the Judge held that Kennedy’s tweets “were protected concerted activity and were for the purpose of mutual aid or protection (of employees).” Importantly, Kennedy’s posts were not part of an employee discussion and he did not consult other employees before tweeting.  Nevertheless, the Judge still found that the tweets “were truly group complaints” protected under Section 7 of the National Labor Relations Act.

Section 7, which has existed in some form or another for almost 70 years (way before tweeting), guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”

Employers need to understand how their social media policies might get them in trouble with the Labor Board. For the past 5 years, the Labor Board has used Section 7 to prevent many employers from disciplining employees who make disparaging remarks about the company on Facebook or Twitter.  Even text messages among employees are considered protected under Section 7.  In cases very similar to Chipotle’s case, the Labor Board found the following examples to be protected activity under Section 7:

• An employee who posts complaints about fellow coworkers on Facebook;
• Starting a Facebook discussion to complain about a supervisor;
• An employee criticizing corporate events on his private Facebook account;
• An employee posting her withholding deductions on Facebook and complaining that the owner was an, “asshole.”

Just like in the Chipotle case, these employers tried to enforce social media policies which violated Section 7. The Labor Board extended Section 7 protection to all of this social media activity in these examples.

Most employers think that Section 7 only applies when the employees are part of a union. Also, most employers think that a strong social media policy can only be a good thing because it helps protect the company’s image.  They are wrong in both cases.  Section 7 applies regardless of whether a union is present in the workplace (Kennedy, for example, was not part of a union while working for Chipotle).  Additionally, a social media policy which is so strong that it prevents routine employee complaints will always violate Section 7.  Consider that in Chipotle’s case, its social media policy contained very narrow provisions designed to protect the company’s image:

• “If you aren’t careful and don’t use your head, your online activity can also damage Chipotle or spread incomplete, confidential, or inaccurate information.”
• “You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.”

Despite this somewhat benign language, the Administrative Law Judge found that these provisions from the social media policy could be reasonably construed by employees to prohibit their Section 7 rights and that the social media policy was promulgated in response to union activity. The Judge ordered Chipotle to cease enforcement of this policy.

Employers need to understand that social media policies must be carefully crafted.  They cannot be used to stop all employee tweets or Facebook posts.  Employees must be allowed to post discussions about their wages and employment conditions – even when they are not posting as part of a group discussion like Kennedy.  The Labor Board has never condoned outright insubordination and will not consider tweets or posts a violation of Section 7 when the employee is ranting or raving against a supervisor.  But the line is very narrow and as Chipotle found out, it can be an expensive mistake.  Be careful that your social media policy does not cost you more money than you anticipated.