A lot of businesses have social media policies that prohibit employees from bad-mouthing the company online, but if those policies could be interpreted as discouraging workers from talking about wages and working conditions, they’re illegal, the National Labor Relations Board said in a ruling on a Chipotle case.
The National Labor Relations Board ordered Chipotle to revoke a social media policy Thursday following a March decision that found the company in violation of the National Labor Relations Act, Bloomberg reported.
The board found that the company’s policy could be interpreted as infringing on employees’ rights to engage in organizing and collective bargaining, even though not all the tweets made by the employee who brought the complaint were, in fact, protected.
The National Labor Relation Board’s August 18 finding reaffirms the March court decision regarding a former Chipotle employee, James Kennedy, and makes further changes to company policy.
Kennedy was fired from a Havertown, Pennsylvania, Chipotle in February for tweeting about wages and circulating a petition to fellow employees (i.e., solicitation) to allow for breaks during shifts. Kennedy was admonished on his Twitter use based on an outdated policy, even though Chipotle had since updated the policy.
A Pennsylvania administrative judge ruled Chipotle was at fault and ordered Kennedy be restored his job plus back-pay. Chipotle also had to post signs in its restaurants explaining the old social media policies were illegal.
“When work rules are overly broad or ambiguous, they may be reasonably read by employees to prohibit lawful Section 7 activity, and may serve to chill employees in the exercise of their Section 7 rights,” a three-member panel wrote in the decision that overturned the social media policy. “… Neither of the challenged provisions explicitly prohibits Section 7 activity. However … employees would reasonably construe portions of these provisions to restrict the exercise of their Section 7 rights.”
These are Section 7 rights:
“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,” as well as the right “to refrain from any or all such activities.”
And these were the parts of the social media policy the board found problematic: “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,” and “You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.”
Banning harassing and discriminatory statements is appropriate, the panel said, but banning “confidential” or “disparaging” information could be interpreted by workers as saying they shouldn’t be talking about working conditions or pay.
The social media policy had a disclaimer that said it didn’t restrict protected activity, but that alone wasn’t enough to save it, the board ruled.
Summary of Decision
The National Labor Relation Board’s August 18 finding orders Chipotle to remove the policy that prevents employees from spreading “inaccurate information,” along with policies banning solicitation and political discussion at work.
The August decision did overturn one ruling from the March case. The National Labor Relations Board found Chipotle had not violated the National Labor Relations Act by ordering Kennedy to remove the tweets because not all of his tweets were protected activity under the National Labor Relations Act.
These rulings could have far-reaching implications for other companies, too, as they move into the digital age. Since certain activities on social media are protected, employers cannot maintain policies that either restrict or seem to restrict any protected activity.
As for Kennedy, he took all of his back pay in Chipotle meal vouchers because he still loves the food, according to Eater.
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