Employer’s Social Media Policy Found to Violate Federal Labor Law by NLRB

The National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., protects workers’ right to engage in various activities related to organizing for the purpose of collective bargaining. In early 2016, an administrative law judge (ALJ) ruled in favor of a worker who alleged that his employer terminated him, in part, because of critical messages posted to the social media platform Twitter. The employer claimed that the employee had violated its social media policy. The ALJ ordered the employee’s reinstatement and further ordered the employer to rescind its social media policy and other policies, finding them to be in violation of the NLRA. The National Labor Relations Board (NLRB) affirmed the ALJ’s ruling. Chipotle Services LLC et al., No. 04-CA-147314, ALJ dec. (NLRB, Mar. 14, 2016); 364 NLRB No. 72 (Aug. 18, 2016).

Employees’ “right to self organization,” to collective bargaining, and to “concerted activities” directed towards these goals are commonly known as “Section 7 rights,” after § 7 of the NLRA, 29 U.S.C. § 157. An employer engages in “unfair labor practices” when it “interfere[s] with” or “restrain[s]” an employee’s efforts to exercise those rights. NLRA § 8(a)(1), 29 U.S.C. § 158(a)(1). The internet, social media, and other new communications technologies have vastly expanded opportunities for concerted activities protected by § 7. The NLRB has addressed numerous disputes over which, if any, restraints employers may place on employees’ use of social media.

The respondent in the Chipotle case operates a nationwide chain of restaurants. According to the ALJ’s ruling, it required employees to abide by a “social media code of conduct” that prohibited “disparaging, false, misleading, harassing or discriminatory statements about or relating to” the employer and other parties. Chipotle, ALJ dec. at 4. The employer stated that it reserved the right to “ take disciplinary action, up to and including termination,” for violations of this policy. Id.

In January 2015, an employee at a restaurant location in Havertown, Pennsylvania reportedly posted a series of tweets that aired multiple grievances about the respondent. This included criticism of a policy requiring some, but not all, employees to work on “snow days,” when public transportation was unavailable. Id. at 3. In response to a customer who tweeted about free food offered by the restaurant, the employee tweeted “nothing is free, only cheap #labor,” and mentioned that many employees only make $8.50 per hour. Id. This tweet drew the attention of the respondent’s “national social media strategist.” Id.

On the following day, the restaurant manager and regional manager met with the employee and asked him to delete the tweet. He agreed to do so. Several weeks later, however, the employee circulated a petition among his co-workers addressing problems with the respondent’s break policy. The restaurant manager instructed him to stop, but he refused. She then terminated him.

The ALJ found that the social media policy violated employees’ § 7 rights, citing a prior NLRB decision invalidating policies that prohibited “disparaging” statements. Id. at 9. The ALJ also noted that the policy prohibited “harassing or discriminatory statements” without defining either term. Id. at 10. She ordered the respondent to reinstate the employee within 14 days and with back pay, and to rescind the social media policy.

If you need to speak to a whistleblower attorney in New Jersey or New York, contact the Resnick Law Group online, at 973-781-1204, or at (646) 867-7997.

More Blog Posts:

NLRB Rules Against Employer that Fired Employee for Giving Testimony to State Legislature, The New Jersey Employment Law Firm Blog, September 16, 2016

NLRB Rules Against Company that Prohibited Employees’ Smartphone Use at Work, The New Jersey Employment Law Firm Blog, February 25, 2016

Digital Journalists in New York Vote to Unionize, Face Opposition from Publication, The New Jersey Employment Law Firm Blog, November 12, 2015


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