A Capehart Scatchard Blog

Chipotle in Trouble Again: Can I Tell My Employee to Delete His Posts on Social Media?

By on March 30, 2016 in Privacy with 0 Comments

The Facts

James Kennedy was a crew member at the Havertown, Pennsylvania Chipotle restaurant.  On January 28, 2015, Kennedy posted two tweets regarding working conditions of Chipotle employees.  One of the tweets included a news article about hourly employees being required to work on snow days, when other workers were allowed the day off. The tweet was directed to Chris Arnold, communications director for Chipotle, and stated: “Snow day for top performers Chris Arnold?” Kennedy also replied to tweets posted by Chipotle customers by stating “nothing is free, only cheap labor. Crew members make $8.50/hr how much is that steak bowl really?”

Chipotle regional manager, Thomas Clark and general manager, Jennifer Cruz, became aware of Kennedy’s tweets and met with him regarding same. During that meeting, Clark and Cruz provided Kennedy with a copy of Chipotle’s social media policy which contained the following provisions at issue:

  • Provision 1: “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.”
  • Provision 2: “You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition or investors.”

Upon reviewing Chipotle’s policy with Kennedy, Clark asked Kennedy to delete his tweets and Kennedy complied with the request.

Thereafter, Kennedy became concerned that Chipotle employees were not receiving their work breaks in accordance with applicable state law. Kennedy drafted a petition for employees to sign, advising management that Chipotle employees had been unlawfully denied breaks. Kennedy solicited signatures in the morning before work commenced. When Cruz was made aware of the petition, Cruz told Kennedy to stop circulating it. Kennedy refused. Cruz then told Kennedy to leave and terminated Kennedy for “insubordination.”

The Union (Pennsylvania Workers Organizing Committee) filed multiple charges against Chipotle on Kennedy’s behalf and a hearing took place before the National Labor Relations Board (“NLRB”).  The complaints alleged that Chipotle violated the National Labor Relations Act (“NLRA”) when it maintained an unlawful social media policy, directed an employee to delete tweets from his Twitter account, prohibited that employee from engaging in protected concerted activity and terminated that employee for protected activity.

Analysis

Section 7 of the NLRA protects employees’ rights to engage in concerted activities for the purpose of mutual aid or protection.  The NLRB reviewed Chipotle’s social media policy and found that the policy provisions referenced in the section above were unlawful under the NLRA.  Specifically, the NLRB found that these two policy provisions were overly broad/ambiguous, in that they may reasonably be read by employees to prohibit lawful Section 7 activity and may serve to chill employees in the exercise of their Section 7 rights.[1]

The NLRB found provision 1 (referenced above) from Chipotle’s social media policy to be unlawful because an employer may not prohibit employee postings that are merely false or misleading. An employer may only prohibit employee postings that have been posted with a malicious motive. The NLRB also found that Chipotle’s prohibition against disclosing confidential information was unlawful because it could easily lead employees to interpret it as restriction their Section 7 rights. Moreover, Chipotle’s policy prohibiting disparaging statements was also overly-broad.

In regards to Kennedy’s specific tweets, the NLRB found that they concerned wages and working conditions, which are matters protected by the NLRA. Chipotle’s request that Kennedy delete the tweets was a violation of the NLRA.  As for Kennedy’s termination, the NLRB held that Chipotle violated the NLRA when it directed Kennedy to stop circulating his petition and that Kennedy’s termination was unlawful because Kennedy was terminated due to his protected conduct (refusal to stop circulating the petition).

What does this mean?

Employers must be careful when drafting social media policies and when disciplining employees based upon those social media policies.  The policy must not be overly-broad or ambiguous to allow the possibility that an employee would interpret the policy as prohibiting concerted activity.  Furthermore, before requesting that an employee discontinue activity on social media, a full analysis of the facts should be undertaken by the employer to make sure that the employer’s actions are lawful under the NLRA.


[1] The NLRB has held that ambiguous rules are to be construed against the employer.

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