How often do you wish you could post a tweet telling your boss and your workplace exactly what you really think of them? How many of you have actually done just that? In March of this year, the National Labor Relations Board (NLRB) ruled on an issue involving just that. An employee of Chipotle, James Kennedy, took to twitter to air his grievances about what he considered to be poor working conditions and unfair wages in his job at Chipotle.
Upon seeing the tweets, Chipotle demanded, pursuant to their social media policy, that Mr. Kennedy take down the tweets critical of their business. Their social media policy forbad Chipotle employees from posting “incomplete, confidential, or inaccurate information and making disparaging, false, or misleading statements.”
Mr. Kennedy took down the tweets in response to his manager’s demands. However, after he was fired a few months later for circulating a petition among employees demanding they be provided legally mandated break time, Mr. Kennedy brought his case before the NLRB. The fact that Chipotle forced him to take down these tweets was among his grievances.
The March NLRB ruling held that the policy was a violation of the National Labor Relations Act (NLRA)—a sweeping federal law which is designed to protect the collective bargaining rights of employees. Among the many protections offered by the NLRA is assurance of an employee’s right to discuss workplace conditions or act as a group to convince management to fix workplace issues. The NLRB felt that Chipotle’s social media policy was a violation of these guaranteed rights.
This shouldn’t have come as a total surprise to Chipotle. The NLRB has advised employers that certain types of social media restrictions would violate the NLRB since as long ago as 2012. However, this was one of the first cases where the NLRB enforced those warnings. Don’t post that tweet just yet though, just last month the NLRB made some serious updates to its initial ruling.
The NLRB’s August Reversal
Just last month, the NLRB changed course on Mr. Kennedy’s tweets. Many of the tweets he was forced to take down were ruled to not be an issue under the NLRA because they either didn’t involve work-related concerns or weren’t part of a concerted employee effort to fix something wrong in the workplace.
However, don’t worry too much about Mr. Kennedy. The August ruling also found that firing Mr. Kennedy over distributing his petitions independently violated the NLRA and required Chipotle to rehire him and pay his lost earnings.
What’s more, while Mr. Kennedy’s specific tweets didn’t create a situation where Chipotle was violating his rights, the NLRB has stuck to its guns as to the Chipotle’s social media policy. The August ruling upheld the judge’s original finding that Chipotle’s social media policy itself violated the NLRA.
Fortunately for employers and employees alike, the NLRA ruling also provided a bit more guidance as to the exact issues with Chipotle’s social media policy—breaking down nearly every word of Chipotle’s policy and explaining why it violated the NLRA.
The Dos and Don’ts of Social Media Policies under the NLRA
First, the ban on sharing confidential information is a no-go. However, the NLRB didn’t put a stop on any limitation of sharing confidential information through social media. As you might imagine, companies have a serious—and very legitimate—interest in keeping confidential material secret. The issue the NLRB took with the policy is the failure to define exactly what constituted confidential material. This meant that the scope of the restriction could include speech protected by the NLRA.
The restriction on disparaging language in the Chipotle social media policy was similarly found to be too broad to be acceptable. Once again, the lack of definition left too many possibilities for abuse. This means that some restrictions on posting things that place a company in a poor light might be acceptable—so long as the restrictions do not prevent employees from speaking to issues within the workplace.
The rest of the restrictions—forbidding false, incomplete, inaccurate, or misleading posts—are explicitly forbidden in social media policies by the NLRB. There is previous case law which prevents employers from implementing policies which bar social media posts on the grounds of a false or misleading nature. There must first be proof that the employee had a malicious motive in making the post before the employer can force an employee to take down a social media post.
Finally, the NLRB ruled that a disclaimer isn’t enough to make a social media policy comply with the NLRA. Chipotle’s policy included a disclaimer which explicitly stated that the social media policy didn’t prevent any post which was protected under the NLRA or any other laws. However, the NLRB ruled that a catchall provision isn’t sufficient to make a policy legal where there are specific elements—such as the restrictions on false or misleading posts—which violate the NLRA.
Since the original ruling in March, Chipotle has updated its social media policy to one that it says complies with the requirements of the NLRB. However, it seems very likely that this case may be the tip of the iceberg for a number of cases involving social media policies to come—only time and tweets will tell.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law