Chipotle was recently handed a defeat by an administrative law judge who found that its social media policy was unlawful and that its termination of an employee who tweeted negative things about the company was in violation of the National Labor Relations Act.
The case involved tweets made by Dennis Kennedy while he was still employed by Chipotle. One of Mr. Kennedy’s tweets in response to a customer’s tweet thanking the company for free food read:
@ChipotleTweets, nothing is free, only cheap #labor. Crew members make only $8.50hr how much is that steak bowl really?
Kennedy took down the tweet after being confronted by a supervisor. The supervisor relied on the Company’s social media policy that banned “disparaging, false” statements about Chipotle. Kennedy’s actions didn’t stop here. He began circulating a petition about workers being unable to take breaks and was then fired.
When I first saw the media coverage and did not yet know the facts, I was bracing myself for another expansive ruling that made almost any comment “concerted activity.” Indeed, that is how some commentators have reacted to the decision. This is not actually the case. Instead, the decision reiterates recent decisions challenging social media provisions that contain very broad confidentiality and non-disparagement provisions.
The tweets that were at the heart of this case were very different from other cases where it was questionable whether the post could be deemed about terms and conditions of work. I can certainly understand why a company would not like to see these posts, but it should be obvious that the tweets referred to terms and conditions of work and therefore, might be “concerted activtity” which is protected under the NLRA.
Commentators on the decision seem to be focusing on the fact that no other employee engaged with Kennedy online and did not even so much as “like” the tweets. Although an employee dialogue would certainly help prove that there had been concerted activity, it is not necessary for an employee to prove that. As the judge found, and according to precedent from 1986, all that is needed is that the activity is done for the mutual aid and protection of the employees.
What is important to note here is that he was not complaining of something that only happened to him. Kennedy’s tweets were broader complaints that crew members were not given time off, were not paid well, and were not given breaks. I think that what was also in the back of the judge’s mind when she ruled was that this was not an employee who just vented on Twitter, he went ahead and tried to directly organize employees with a petition.
Although this decision is not new law, it is a reminder that employers need to insure that social media policies comply with NLRB rulings.
Two key provisions for employers to look at is how they define confidential information and whether they prohibit “false” postings. It should seem logical that an employer could act on false and defamatory posts. It is not so simple as that. Several recent NLRB decisions have held that it is not enough that the post be false; the employee must have had malicious intent. In other words, the post must be willfully false.
It may seem silly that simply adding the word “willfully” before a prohibition against false statements may change anything, but that one word could be the difference between a lawful and unlawful social media policy. What’s the saying? “For want of a nail“