How Social Media Policies Can Violate Labor Laws

Twitter Bird LogoSome employers (Chipotle, for example) have gotten into trouble with the National Labor Relations Board (NLRB) for having social media policies that restrict the speech of employees in ways that at first glance would NOT seem to be a violation of labor laws.

Section 7 of the National Labor Relations Act

The National Labor Relations Act, enacted into law in 1935, is the basis for much of America’s labor laws. Among other things, it protects the right of private sector employees to organize into unions, engage in collective bargaining, and take actions, including strikes, if needed.

Section 7 of the Act says,

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection...

While this law might seem to apply only to activities connected with forming a labor union, note the language “or other mutual aid or protection.”

Chipotle’s Pre-2014 Social Media Policy

Chipotle has since changed its social media policy. There were two statements in its older policy that got Chipotle into trouble:

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.

To a casual reader, Chipotle’s policies may seem quite reasonable. Isn’t Chipotle simply asking employees not to harm the company? Here’s how Chipotle got into trouble.

Chipotle Services LLC and Pennsylvania Workers Organizing Committee

James Kennedy, an employee of Chipotle in Havertown, Pennsylvania was told by his employer that the following tweets were a violation of company policy, and he needed to delete them:

  • A customer tweeted “Free chipotle is the best thanks.” Kennedy sent a tweet back: “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?”
  • A customer tweeted something about Chipotle’s guacamole, and Kennedy replied, “it’s extra not like #Qdoba, enjoy the extra $2.”

This was in 2015. Despite the fact that Chipotle in theory had a new and different social media policy in place, the Chipotle manager responsible for Chipotle’s social media sent Kennedy’s supervisor a copy of the old policy and asked him to discuss the tweets with Kennedy. Kennedy deleted the tweets.

Kennedy’s tweets were part of a much larger discussion about his relationship with Chipotle, but as part of its ruling the judge did address the question of whether Chipotle had an unlawful social media policy.

The judge found that the social media policy was indeed unlawful:

“Disparaging” is a synonym for derogatory. The prohibition against disparaging statements could easily encompass statements protected by Section 7, and the Board has found rules prohibiting derogatory statements to be unlawful.

Kennedy’s tweet about pay rates in particular was found to be protected by section 7, as it related to the “mutual aid” of all Chipotle employees at such a low pay scale.

The judge also found that it was irrelevant that the policy was not “officially” in effect at the time. Since the manager used it as the basis for dealing with Kennedy, it was effectively in force.

Takeaways

Be very careful when formulating company policies that restrict employees’ freedom of speech. It’s advisable to consult with an attorney who has experience in this area when creating company policies.

If you update a policy — especially if you update it to bring it into compliance with the law -- make sure all your managers only use the current policy.

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