Company restrictions of employee commentary on social media continue to be a problem in the eyes of the National Labor Relations Board. In Chipotle Services, LLC, 362 N.L.R.B. No. 72 (August 18, 2016) the Board held that the company’s policy telling employees to be careful not to post “incomplete, confidential or inaccurate information” was an unfair labor practice. This result should not surprise anyone who has been paying attention to this Board’s social media decisions. The problem for employers, and those of us who represent them, is predicting what apparently reasonable expectation of appropriate workplace behavior the Board will strike down next.
No one can argue that it’s been a tough slog for Chipotle recently. The company’s stock took a big hit after outbreaks of norovirus and E. coli sickened dozens of customers in 2015. A Boston area store was closed when an employee was diagnosed with norovirus. Then there was an announced criminal investigation into company-wide food safety matters in California.
But the problems here started in early 2015 when an employee at the Havertown, Pennsylvania Chipotle store, James Kennedy, began using his Twitter account to badger company higher-ups about the problems of lower paid workers. Cheeky, sure. But Kennedy went after customers too. After one customer tweeted appreciation for a free Chipotle offer, Kennedy replied: “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” Then, replying to a tweet posted by another customer about guacamole, Kennedy wrote “it’s extra not like #Qdoba, enjoy the extra $2” (referring to the fact that, unlike the restaurant chain Qdoba, Chipotle charges extra for guacamole). The store manager talked to Kennedy and showed him the (outdated) Chipotle social media policy, part of which read:
Social media is also a quick way for you to connect with friends and share information and personal opinions. 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. To avoid this, our Social Media Code of Conduct applies to you. Chipotle will take all steps to stop unlawful and unethical acts and behavior and may take disciplinary action, up to and including termination, against you if you violate this code or any other company policy, including Chipotle’s Code of Conduct.
(Emphasis added). The policy also provided that “[t]his code does not restrict any activity that is protected or restricted by the National Labor Relations Act, whistleblower laws, or any other privacy rights.”
Kennedy agreed to take down the posts. But two weeks later, when he was trying to get other employees to sign a petition about work breaks at Chipotle, a manager told him to stop. Things got heated. Kennedy raised his voice at the manager, and she asked him to leave. (The manager later testified she was concerned for her safety because Kennedy is Iraq war veteran). Kennedy was fired.
Affirming nearly all of a decision by an Administrative Law Judge (ALJ), the NLRB found that Kennedy’s Section 7 rights were violated. Of course, firing an employee for trying to get other employees to sign a petition for better working conditions is a textbook example of an unfair labor practice. And yes, even if that employee is uncivil when confronted about it by a supervisor. But let’s focus on the social media policy issue, because that’s where it gets interesting.
Citing various prior Board decisions, the ALJ wrote (and the Board agreed) that “[a]n employer may not prohibit employee postings that are merely false or misleading. Rather, in order to lose the Act’s protection, more than a false or misleading statement by the employee is required; it must be shown that the employee had a malicious motive.” That is, employee statements are protected absent a showing of reckless disregard for the truth or maliciousness – essentially the standard required to prove defamation: untrue and meant to harm the company.
The ALJ also held, and the Board agreed, that Chipotle’s “disclaimer” saying the social media policy was not intended to chill anyone’s NLRA rights did not “serve to cure the unlawfulness of the foregoing provisions.”
There’s one (albeit dim) bright spot, however: the Board reversed the ALJ on the issue of whether Kennedy’s tweets to customers constituted protected concerted activity. The NLRB said they were not protected because “on this record, we do not find that Kennedy’s underlying actions were concerted.” It was noted that NLRB Chairman Pearce would have found an ULP here, “except for the judge’s finding that Kennedy’s tweet regarding the price of guacamole constituted protected, concerted activity, as this tweet appears unrelated to employees’ terms and conditions of employment, and thus was not for the purpose of mutual aid or protection.” Chairman Pearce must not like paying more for his guac.
What’s the take away? First, employers should be vigilant in updating their social media policies. Second, an employer better be able to show that an employee – whether acting alone or in concert with others – is essentially defaming the company on social media before taking action based on that tweet or post.
Expectations of general workplace civility as the standard for good conduct long ago went out of style at the NLRB. It seems that one of the lasting legacies of this Board will be the acceptance and approval of bad workplace behavior as long as it does not constitute harassment or discrimination. In Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), the Board did hold that prohibitions against “verbal abuse, abusive or profane language, or harassment” were lawful. Swell. So at least we have a lowest common denominator. I recognize the law of the workplace does not “mandate an employment environment worthy of a Victorian salon,” (see Hall v. Gus Constr. Co., 842 F.2d 1010, 1017 (8th Cir.1988)), but look how great we collectively feel after this past year (or more) of continuous negative commentary in our country. Snark is the new normal. Isn’t that wonderful?