Beware Vague or Outdated Policies
September 22, 2016
NLRB’s Latest Decision on Social Media Policy a Cautionary Tale for Employers:
Beware Vague or Outdated Policies!
Over the past several years, the National Labor Relations Board (NLRB) has been issuing a series of decisions in cases involving employee speech on social media that makes it increasingly harder for employers to draft and enforce social media policies that comply with Section 7 of the National Labor Relations Act (NLRA), which protects the rights of most both unionized and non-unionized employees to discuss working conditions with one another. The NLRB’s decision in Chipotle Services LLC, 364 NLRB No. 72 (2016) raises a new set of questions and challenges for employers. In this case, the NLRB decided that the dissemination of an outdated social media policy at Chipotle Mexican Grill that vaguely prohibited employees from using their private social media sites to post incomplete, confidential or inaccurate information about their workplace, or from making disparaging, false or misleading statements about the company, violated Section 7. The NLRB’s basis for this conclusion is that the policy in question illegally constrained employees’ ability to discuss workplace conditions.
The underlying facts of this case are the following. A Chipotle employee in Pennsylvania responded to a customer’s positive Twitter posting about Chipotle by tweeting about the denial of snow days to front-line employees and the restaurant’s guacamole costing extra. Chipotle’s Area Manager handed the employee an outdated social media policy which prohibited employees from making “disparaging” and “false” online statements about the company, and asked him to remove the tweets, which he did. Several weeks later, the employee was terminated, after he circulated a petition protesting workers not getting their required breaks.
NLRB Administrative Law Judge Susan Flynn ruled that the employee’s termination violated the NLRA, because it was prompted by the petition he circulated, as well as by his earlier statements about wages on Twitter, both of which she deemed protected by the NLRA. ALJ Flynn ruled that the social media policy the employee was handed was unlawful, because it could not prohibit, as it did, “incomplete, confidential, or inaccurate information” and preventing employees from making “disparaging, false, [or] misleading” because, under NLRB precedent, false statements are protected unless they are maliciously false. The ALJ also equated “disparaging” statements with derogatory statements, and held that employees have a protected right to make derogatory statements about the terms and conditions of employment.
The ALJ concluded that the employee’s tweets were concerted activity, and not an individual complaint, because they were “visible to others”, and ruled that the employee’s complaints about the wages paid to crew members, and the price Chipotle charged for guacamole, were “truly group complaints.” The ALJ stated that the employee’s tweets “had the purpose of educating the public and creating sympathy and support for hourly workers in general and Chipotle’s workers in specific.” Lastly, ALJ Flynn held that Chipotle’s disclaimer that the policy was not meant to “restrict any activity that is protected by the National Labor Relations Act” did not cure the unlawful provisions in the social media policy.
In reviewing the ALJ’s decision, the NLRB ruled that the employee’s tweets did not concern labor complaints, and thus did not constitute concerted activity and that, therefore, Chipotle did not violate the NLRA by requesting that he delete his tweets. While this portion of the NLRB’s decision is very positive for employers, the NLRB affirmed ALJ Flynn’s ruling that the social media policy the employee was handed was illegal. In so ruling, the NLRB relied on Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), which created a three-pronged test for determining if an employer’s workplace policy violates employees’ Section 7 rights, to wit:
• If employees could reasonably construe the policy’s language to prohibit activity under Section 7;
• If the policy was issued in response to union activity; or
• If the policy was applied to restrict the exercise of Section 7 rights.
Recent NLRB decisions have applied the first prong of the Lutheran Heritage test very broadly and found that rules and policies that the employer previously considered “perfectly ordinary” actually violated Section 7.
The most important takeaway from Chipotle Services LLC is that employers should be very careful in drafting social media policies, and should revise and update any existing policies that control or regulate employee expression. The language chosen for these policies should be as precise and specific as possible, to lessen the likelihood of the NLRB finding issue with them. Employers should consider consulting with labor counsel when in doubt as to whether their social media policy passes muster.
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