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NLRB Trouble for a Flawed Social Media Policy.

NLRB Trouble for a Flawed Social Media Policy

September 9, 2016

Despite the best of intentions, there is no question that social media presents challenges for employers. In perhaps the latest intrusion by the National Labor Relations Board in to this murky area, on August 18, 2016, an NLRB judge ruled that Chipotle Mexican Grill in violation the National Labor Relations Act (NLRA) after management forced an employee to delete posts on his twitter account in January 2015 when he expressed thoughts that were critical of the company. Administrative Law Judge Susan Flynn determined that the employee’s tweets were “protected concerted activity” and that Chipotle’s requiring him to delete them was unlawful. Additional problems came to light as a result of the initial tweets as well.

James Kennedy was an employee at a Chipotle restaurant in Havertown, Pennsylvania when he first posted the tweets that captured the attention of national social media strategist, Shannon Kyllo. A customer tweeted a thank you for receiving free food and Kennedy responded, ““@ChipotleTweets, nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” According to the court records, Kyllo contacted the regional manager, Thomas Clark and requested that he ask Kennedy to remove that tweet and others that were related from the account and to review Chipotle’s social media code of conduct with him. After being given a written copy of the policy that Kyllo emailed to Clark, James Kennedy deleted the tweets.

Judge Flynn found that forcing the employee to take down his tweets was unlawful. She further explained that his tweets related to “group complaints” and that he was speaking on behalf of the beliefs of others even though he had not consulted with anyone else prior to tweeting. When Clark passed on the policy and told Kennedy to stop posting similar tweets, he was prohibiting Kennedy from engaging in protected concerted activity. Judge Flynn wrote, “I find that Clark’s implicit direction not to post tweets concerning wages or working conditions constitutes a violation of the law.”

Several weeks after the messages were deleted from his Twitter account, Kennedy started a petition protesting the company’s break policies. Employees were not getting their promised breaks and he was alerting coworkers and management to the issue. Another supervisor ordered him to stop immediately. He was not told to wait and talk to people outside of work or during breaks but to simply stop. This too was a violation of his rights as an employee. He was fired soon after a heated argument with this supervisor, Jennifer Cruz, regarding his continued circulation of the petition. He quickly took his case to the NLRB.

Ms. Cruz said that she feared what Kennedy would do if she did not send him home and subsequently fire him. She stated that Kennedy would punch boxes at the restaurant to break them down and flatten them and believed that this too, was a hostile action. Kennedy is three-time war veteran with a diagnosis of post-traumatic stress disorder. The NLRB ruled that firing him because of the condition was discrimination against a person with a disability. Judge Flynn wrote, “If it weren’t such blatant discrimination, Jennifer Cruz’s testimony would be laughable.” The judge did not believe that there was any shouting, swearing or threatening during the last interaction between Cruz and Kennedy and went on to say that the story of Cruz’s fear of Kennedy was “neither justified nor true.”

Chipotle was ordered to rehire Kennedy and provide back pay for the time he was unemployed since he was fired in February 2015. The company must also rescind the unlawful portions of social media policy and replace four sections with approved wording from the NLRB. Chipotle is further required to post prominent notices at all its workplaces informing employees of the changes. Kennedy is working elsewhere now and has said that he is not interested in returning to the restaurant chain.

At least as early as 2012 the NLRB cautioned employers that some social media speech by employees is protected against retaliation or prohibition, including specific complaints about their workplace, including wages, hours, benefits, or other conditions. This can be a difficult area to judge when an employer, mindful of trying to protect its reputation and goodwill, is being scrutinized or criticized in the public, on social media. It is important not to overreact and equally important to have the appropriate legally compliant policies in place to handle these issues before they arise. For more information, please contact Peter Bennett(pbennett@charlesc48.sg-host.com) or Rick Finberg (rfinberg@charlesc48.sg-host.com) of The Bennett Law Firm for more information.

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