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NLRB: Chipotle’s social media policy unlawful, but tweet about low pay not concerted activity

By Lisa Milam-Perez, J.D. and Dave Strausfeld, J.D.

Chipotle did not violate the NLRA when it told an employee to delete his Twitter comment about the restaurant chain’s low wages in response to a customer’s tweet, a divided NLRB panel held, finding (contrary to an administrative law judge) that his conduct was not concerted activity. The employer did, however, unlawfully maintain a social media policy that bars employees from posting “incomplete, confidential, or inaccurate information and making disparaging, false, or misleading statements,” the three-member panel held. Adopting in part a law judge’s findings, the NLRB ordered the employer to cease and desist from prohibiting employees from posting on social media regarding wages and other terms or conditions of employment (Chipotle Services LLC dba Chipotle Mexican Grill, August 18, 2016).

Twitter postings. Chipotle’s national social media strategist, whose job included reviewing employee social media postings for violations of company policy, saw a tweet posted by an employee of a Chipotle Mexican Grill in Havertown, Pennsylvania. In response to a customer who had tweeted “Free chipotle is the best thanks,” the employee had said, “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?”

The social media strategist forwarded the employee’s tweet to the regional manager for the Haverford location. The next day, the restaurant’s general manager and regional manager asked the employee to delete the tweet, which he did later that day. (He was subsequently fired after circulating a petition complaining that employees were not being given mandated breaks.)

Social media policy. The company’s social media policy was unlawful. Two sections of the policy, in particular, were challenged: One stated, “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.” The other provided, “You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.”

The prohibition of false, misleading, incomplete, or inaccurate social media postings violated Section 8(a)(1), the ALJ correctly determined, citing Lafayette Park Hotel. An employer may not prohibit employee postings that are merely false or misleading. Rather, in order to lose the NLRA’s protection, it must be shown that the employee had a malicious motive in posting the material. The bar against disclosing confidential information was also problematic because the social media policy did not define “confidential.” While the company certainly had a valid interest in protecting private company information, the undefined word was vague and subject to interpretation, which could easily lead employees to construe it as restricting their Section 7 rights. Nor could the company ban the posting of “disparaging” social media comments. Such a restriction could easily encompass statements protected by Section 7, as the Board indicated in Southern Maryland Hospital Center, which involved statements that were “derogatory” (a synonym for “disparaging”).

Request to delete tweets. However, while the ALJ concluded that the employee’s tweets constituted protected, concerted activity because they had the purpose of “educating the public and creating sympathy and support” for hourly workers in general, and Chipotle’s workers in specific, a divided panel found the tweet did not amount to concerted activity, and thus rejected the ALJ’s finding on this point.

Other findings adopted. The Board also adopted the ALJ’s finding that Chipotle maintained an overbroad solicitation rule, too, which prohibits employee solicitation during nonwork time in work areas “within the visual or hearing range of customers.” In addition, it upheld the finding that the employer unlawfully discharged the employee for refusing to stop circulating a petition regarding the employer’s failure to abide by its own break policy. The Board rejected Chipotle’s contention that the employee lost the protection of the Act due to his conduct during the meeting. The employer was ordered to reinstate the employee and reimburse him for lost wages.

Remedy. Finally, the Board modified the ALJ’s recommended remedy by ordering Chipotle to furnish employees with inserts for the current employee handbook advising them that the company rescinded the unlawful policy provisions; to “provide lawfully worded provisions on adhesive backing that will cover the unlawful provisions”; or to publish and distribute revised handbooks with the unlawful provisions removed, or including lawfully worded provisions.