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National Labor Relations Board Decision Highlights Risks of Disciplining Employees for Social Media Posts

By: Lisa M. Schonbeck, Esq.

On March 14, 2016, an Administrative Law Judge (“ALJ”) issued a decision citing multiple violations of the National Labor Relations Act (“NLRA”) in connection with an employer’s maintenance and application of a social media policy. The decision in Chipotle Services LLC d/b/a Chipotle Mexican Grill highlights the continued focus of the National Labor Relations Board (“NLRB”) on employers’ social media policies.

The NLRA and Social Media

The complaint before the NLRB alleged that Chipotle violated Section 8(a)(1) of the NLRA in several respects, including:

  • Maintaining an unlawful social media conduct code;
  • Directing an employee to delete certain tweets he had posted on his Twitter account;
  • Prohibiting the employee from engaging in protected concerted activity;
  • Prohibiting the employee from circulating a petition among coworkers regarding breaks;
  • Terminating the employee for engaging in protected concerted activity; and
  • Maintaining four (4) unlawful work rules in its handbook.

The facts of this decision were unique in that, although Chipotle had revised its social media policy, it based its request that the employee delete certain tweets he had posted on a prior version of the policy. That policy warned against spreading “incomplete, confidential, or inaccurate information” and prohibited employees from making “disparaging, false, [or] misleading . . . statements about or relating to Chipotle.” Noting that Section 8(a)(1) of the NLRA prohibits an employer from maintaining a work rule that reasonably tends to chill employees in the exercise of their Section 7 rights, the ALJ found these provisions in the outdated policy to be unlawful.

Chipotle argued that it was purely punitive to find a violation of the NLRA based on an outdated policy that was no longer in use. The ALJ rejected this argument, however, finding that because Chipotle had used the outdated policy as a reason for corrective action involving this employee and eight other individuals, it had “maintained” an unlawful policy.

The ALJ found another violation of the NLRA in Chipotle’s request to the employee to delete certain tweets he had posted using his personal Twitter account. Specifically, the employee was asked to delete tweets about employees being required to work on snow days and about the employees’ hourly wages. Citing Section 7 of the NLRA, which protects employees’ right to engage in concerted activities for the purpose of mutual aid and protection, the ALJ determined the employee’s tweets had the purpose of “educating the public and creating sympathy and support for hourly workers in general and Chipotle’s workers in specific.” Accordingly, the postings constituted concerted activity and Chipotle’s request to remove them and its implied directive not to post others, via providing the employee with a copy of the outdated social media policy, violated the NLRA.

Guidance for Employers

This decision highlights the importance of carefully drafting social media policies, ensuring that supervisors and managers are informed of the most recent versions of such policies and trained on their use in terms of disciplining or discharging employees.

Leech Tishman’s Employment Practice Group has extensive experience drafting handbook and other employment-related policies, including social media policies, for use by employees in a variety of industries.

Lisa M. Schonbeck is a Partner in the Employment and Litigation Practice Groups. She is  based in the Pittsburgh office. Lisa can be reached at 412.261.1600 or lschonbeck@leechtishman.com.

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