More Trouble for Chipotle: NLRB Rules Social Media Policy and Practice Unlawful

Chipotle experienced more misfortune than contamination of food when a National Labor Relations Board (NLRB) administrative law judge (ALJ) ruled on March 14, 2016, that Chipotle violated the National Labor Relations Act (NLRA) for applying an unlawful (though outdated) social media policy and requiring an employee to delete certain tweets from his personal Twitter account pertaining to purported adverse working conditions. Chipotle had previously updated its social media policy, but for reasons unexplained in the opinion, its old policy was applied to the employee.

In early 2015, James Kennedy, a former Chipotle employee in Havertown, PA, wrote a series of tweets about Chipotle from his personal account. These tweets were reviewed by a national social media strategist employed by Chipotle to review employees’ social media posts. One of Kennedy’s tweets included a news article about hourly workers being required to work on snow days while certain other workers were off, and public transportation was down. Kennedy directed this tweet at Chipotle’s Communications Director, Chris Arnold, stating, “Snow day for ‘top performers’ Chris Arnold?” Other tweets included responses to posts by Chipotle customers. One customer posted “Free chipotle is the best thanks,” to which Kennedy responded, “Nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” Another customer posted about guacamole, to which Kennedy responded, “it’s extra not like #Qdoba, enjoy the extra $2.” Notably, Mr. Kennedy did not consult with any of his co-workers before or at the time he made these posts.

Chipotle instructed Kennedy to delete the tweets, finding that they violated the company’s (outdated) social media policy. Chipotle gave him a copy of the company’s old social media policy, instructing him to refrain from further posts that would violate the company policy. Kennedy was subsequently terminated for other reasons, for which the ALJ also ruled that Chipotle violated the NLRA.

The ALJ concluded that Chipotle violated the NLRA by directing the employee to delete the tweets and to not engage in such activity in the future. The ALJ determined the tweets concerned wages and working conditions (e.g., pay rates and having to work on snow days), which are matters covered by the NLRA. Even though Kennedy acted alone, the ALJ held that this was concerted activity because the tweets discussed issues common to many Chipotle employees. This portion of the decision is not very surprising in light of the NLRB’s 2014 decision in Fresh & Easy, which we discussed in a previous alert.

The NLRB judge determined that the social media policy given to Kennedy and used by Chipotle when it requested him to delete his posts was unlawful. The judge scrutinized two provisions:

• “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.”

While the prohibition against harassing or discriminatory statements was deemed lawful, the ALJ found that other prohibitions violated the NLRA. The ALJ based its conclusion, in part, on previous NLBR decisions that found other policies prohibiting “derogatory statements” to be overly broad and chilling to an employee’s right to engage in Section 7 activity. The ALJ also held that it was overly restrictive to prohibit an employee from making “false” statements alone, holding that “more than a false or misleading statement by the employee is required; it must also be shown that the employee had a malicious motive.”

Notably, the ALJ disregarded and found no relief for Chipotle simply because the policy contained a disclaimer, which stated that the policy “does not restrict any activity that is protected or restricted by the National Labor Relations Act, whistleblower laws, or any other privacy rights.” It also did not matter that Chipotle’s new social media policy, which the company should have used with Kennedy, was lawful.

This decision highlights the challenges employers face in implementing lawful policies in the face of the NLRB’s increasingly aggressive stance and scrutiny over employment policies. Employers should carefully review their policies and seek legal counsel to ensure that current policies and practices are in compliance. This case is also an important reminder for companies to make sure they have issued their up-to-date policies to all employees and that only the most current policies are being followed.