The National Labor Relations Board (the “Board”) continues its focus on overly-broad work policies – now in a non-union workplace – with a recent decision against Chipotle Mexican Grill. Although the Board found Chipotle violated the National Labor Relations Act (the “Act”) by (1) maintaining overly-broad social media and work policies, (2) ordering an employee to quit circulating a petition, and (3) firing the employee when he refused to do so, it found the employer did not violate the Act by asking the employee to remove certain tweets from his Twitter account. This case provides additional guidance on what is and is not permissible in work rules, particularly as they apply to social media posts by employees.

Chipotle maintained a “Social Media Code of Conduct” that included language prohibiting the spread of “incomplete, confidential, or inaccurate information” and making “disparaging, false, [or] misleading” statements about Chipotle. The policy included a disclaimer that it did not restrict any activity protected by the National Labor Relations Act. Chipotle also maintained an employee handbook that included prohibitions on (1) soliciting during nonworking time in working areas if the solicitation would be within “visual or hearing range of customers”; (2) improper use of Chipotle’s name; (3) “exaggeration, . . . guesswork, and derogatory characterizations of people and their motives”; and (4) political discussions at work.

One employee was discovered to have posted tweets about his work at Chipotle. One tweet included a news article about hourly employees having to work on snow days when other employees were off. This tweet was directed at Chris Arnold, Chipotle’s communications director, and stated, “Snow day for ‘top performers’ Chris Arnold?” The employee’s other tweets were in response to customer tweets. When a customer tweeted, “Free chipotle is the best thanks,” the employee responded, “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” When another customer tweeted about guacamole, the employee pointed out, that unlike Qdoba, Chipotle charges extra for guacamole: “it’s extra not like #Qdoba, enjoy the extra $2.”

The employee’s manager asked him to remove the tweets, and he did. An administrative law judge found that this action violated the Act, but the Board disagreed. Although the tweets involved the employee’s work conditions, they were not directed to his fellow employees. Therefore, the Board found his tweets did not amount to concerted activity protected by the Act.

Chipotle lost on every other issue, however. The Board found that Chipotle’s social media policy would reasonably tend to chill employees in the exercise of their rights under the Act because the terms “confidential” and “disparaging” were not defined, and therefore, could be construed to include statements protected by the Act. The Board found the prohibition on making false or misleading statements was overly-broad. In order to lose the Act’s protection, an employee must not only make false or misleading statements but must also do so with a malicious motive. Furthermore, the Board found that the disclaimer that the policy was not intended to infringe on any activity protected by the Act did not cure the unlawfulness of the above provisions.

Similarly, the Board found that the handbook policy against solicitation was overly broad, as its prohibition against solicitation within visual or hearing range of customers extended the prohibition beyond where such solicitation would interfere with business. The Board found the prohibition on use of the company’s name to be overly-broad because it is often necessary for employees to identify their employer when engaged in protected, concerted activity. The Board also found that the prohibitions on exaggeration, guesswork, and derogatory characterizations of people and their motives were overly-broad. And, the Board found that the prohibition on discussing politics at work was unlawful because it would prevent employees from engaging in a variety of protected activities.

Besides the above issues involving social media and other work policies, the Chipotle case also involved the employee circulating a petition amongst his co-workers about break times. The manager ordered him to quit circulating the petition. When the employee refused to do so, and the conversation got heated, the manager fired the employee. The Board found that both prohibiting the employee from circulating the petition and firing him when he refused to do so were unlawful.

Once again, the Board has found unfair labor practices in employer policies that seem reasonable on the surface. Of note, however, the Board found the employer did not violate the Act by asking the employee to remove disparaging social media posts that did not amount to concerted activity with other employees.

If you have not reviewed your social media and workplace conduct rules in recent years, you should do so. It is always a good idea to run your policies past legal counsel to help ensure they are in line with current Board precedent. Likewise, if you are considering disciplining an employee over social media posts, a quick consultation with your lawyer could save you many headaches later on.

Mark Jeffries focuses his practice in the area of labor and employment law. He has represented employers in wrongful discharge and discrimination cases in state and federal court, as well as before the West Virginia Human Rights Commission and the U.S. Equal Opportunity Commission.
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