Chipotle’s Tweeting Controversy

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Mar 24, 2016

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ChipotleCan an employee be fired for using Twitter to complain about low wages or working conditions? According to a recent decision from the National Labor Relations Board, the answer is “no.”

The growing use of Facebook, Twitter, or other social media outlets to vent workers’ complaints has given rise to questions about the legality of workplace rules that prohibit criticism of an employer. The latest decision exemplifies the careful line that employers must walk when they address the tension between protecting a corporate image and suppressing an employee’s right to complain about conditions of employment.

James Kennedy Tweets About Chipotle

James Kennedy worked at a Chipotle Mexican Grill in Havertown, Pennsylvania. Kennedy transmitted an uncomplimentary tweet about a newspaper article concerning Chipotle’s requirement that hourly workers report for work on “snow days,” when public transportation was unavailable. Answering tweets in response to his own, Kennedy made reference to “cheap labor” contributing to Chipotle’s low prices, and pointed out that Chipotle, unlike its competitor Qdoba, charges extra for guacamole.

The company’s “national social media strategist” regularly monitors Twitter for comments about Chipotle. When she saw Kennedy’s tweets, she asked a regional manager to discuss the company’s social media policy with Kennedy. Chipotle’s social media policy prohibits employees from posting “disparaging, false, misleading, harassing or discriminatory statements” about Chipotle.

Chipotle’s strategist told the regional manager to instruct Kennedy to remove the tweets. The regional manager apparently delegated that task to the store manager. Kennedy took down the tweets at the store manager’s direction.

Kennedy Circulates a Petition

About two weeks after the Twitter incident, Kennedy circulated a petition expressing the concern that Chipotle was violating its policy about the rest breaks to which employees were entitled. According to the petition, employees were denied breaks when they did not “get their work done on time.” The petition contended that Chipotle was using an “unacceptable excuse” to deny break times and expressed the hope that the petition would start “a genuine dialogue without fear of reprisal.” Kennedy solicited employees’ signatures on the petition outside of their work hours and without disturbing Chipotle’s customers.

When the store manager became aware that Kennedy was circulating the petition, she confronted him. After they discussed the contents of the petition, the store manager told Kennedy to stop circulating it. When Kennedy refused, the store manager fired him.

The National Labor Relations Act and Unfair Labor Practices

The National Labor Relations Board (NLRB) administers the National Labor Relations Act (NLRA), a federal law that protects the right of workers to organize. Kennedy did not belong to a union, but section 7 of the NLRA guarantees all workers the right “to engage in … concerted activities for the purpose of … mutual aid or protection,” whether or not they belong to or are trying to form a union.

Activity is “concerted” if it is engaged in on behalf of other employees, not solely for the benefit of the employee who conducts that activity. Concerted activity is protected by the NLRA “if it concerns employees’ interests as employees,” provided that the activity does not involve misconduct.

The NLRA prohibits employers from engaging in unfair labor practices. Section 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the NLRA. Threatening or taking adverse employment action because an employee engages in concerted protected activity is an unfair labor practice.

After Kennedy was fired, the Pennsylvania Workers Organizing Committee filed a complaint with the NLRB on his behalf. The NLRB issued a decision after holding a hearing and taking evidence from Chipotle and from Kennedy. A primary issue at the hearing concerned Chipotle’s social media policy and Kennedy’s tweets.

Chipotle’s Social Media Policy Violated the NLRA

The NLRB decided that Chipotle’s social media policy violated the NLRA. In general, work rules violate the NLRA when they tend to chill an employee’s exercise of protected activity. Although Chipotle has revised its policy, the NLRB found that the former policy was applied to Kennedy’s actions.

Prior NLRB decisions establish that a prohibition against making “false” or “misleading” statements about an employer violates the NLRA unless the work rule is limited to statements that are deliberately false and made for a malicious purpose. Work rules that prohibit unwittingly false statements may chill protected attempts to communicate with other employees about the conditions of their employment. Chipotle’s social media policy was unlawful because it drew no distinction between misleading statements made with malice and those that are not intentionally false.

More troublesome was the policy’s prohibition of “disparaging” comments about Chipotle. Since complaints about wages and working conditions might easily be said to “disparage” an employer, NLRB has consistently held that it is an unfair labor practice to prohibit employees from making derogatory or disparaging statements about the employer. It arrived at the same conclusion when it analyzed Chipotle’s social media policy.

Kennedy’s Tweets Were a Protected Activity

Kennedy’s tweets were directed to the general public, not specifically to other Chipotle employees. The NLRB has held, however, that communications to the public concerning an ongoing labor dispute are protected by the NLRA. Employers are therefore prohibited from interfering with those communications.

While Kennedy’s tweets did not address an attempt to organize a union, they did involve wages and workplace conditions (snow days). The tweets did not pertain to Kennedy’s individual concerns but addressed issues that are common to all of Chipotle’s hourly workers. The tweets therefore involved concerted activity undertaken for the purpose of educating the public and creating sympathy for Chipotle workers as a whole. The tweets constituted protected concerted activity, and requiring Kennedy to remove those tweets violated the NLRA.

Kennedy’s Termination Violated the NLRA

Less controversial is the NLRB’s determination that firing Kennedy for circulating a petition was unlawful. The petition directly pertained to a condition of employment (break time) and it concerned the rights of all employees, not just Kennedy’s. The petition was circulated during employees’ nonworking hours. Firing Kennedy for engaging in conduct that is expressly protected by the NLRA was a clear violation of that law.

The NLRB determined that Kennedy did not forfeit his right to his job when he lost his temper and raised his voice during his meeting with the store manager, since his anger was provoked by a violation of his rights. He did not engage in threatening or abusive conduct and was therefore entitled to reemployment.

The NLRB ordered Chipotle to offer Kennedy reinstatement and to give him back pay from the date of his termination. Kennedy, who now holds a union job with American Airlines, told the Philadelphia Inquirer that he’s not interested in returning to work for Chipotle. The NLRB decision, unless reversed by a court, nevertheless gives Chipotle and other employers good reason to scrutinize their social media policies to assure that they do not chill the right of employees to criticize an employer’s wages or working conditions.

(Photo Credit: “Chipotle” by Mike Mozart is licensed under CC BY-SA 2.0.)

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