• NLRB Rules: Chipotle Mexican Grill Under Fire for Controversial Social Media Policy and Interfering With Employees’ Right To Organize
  • July 21, 2016 | Author: Candace D. Embry
  • Law Firm: Marshall Dennehey Warner Coleman & Goggin, P.C. - Philadelphia Office
  • Key Points:
    • Social media policies that “tend to chill” employees’ right to organize or engage in protected concerted activity may violate the National Labor Relations Act.
    • Employers may avoid unexpected exposure to liability by being diligent to remove and warn management against the use of outdated policies.
    • Unpleasantries in the course of otherwise protected activity do not remove protection of the National Labor Relations Act.
    Chipotle is back in the news, but not to worry-your guacamole is safe. (And yes, it is still extra!)

    On March 14, 2016, the National Labor Relations Board (NLRB) ruled that Chipotle Mexican Grill violated Section 8(a)(1) of the National Labor Relations Act, effectively chilling employees’ right to self-organize when it maintained and enforced an unlawful social media policy and fired an employee for circulating a petition.

    In January 2015, James Kennedy, a crew member at the Havertown, Pennsylvania Chipotle store, posted several tweets regarding the working conditions of Chipotle employees. Specifically, Kennedy’s tweets commented that Chipotle had cheap labor and referenced the fact that crew members made only $8.50 per hour. On January 29, 2015, after Chipotle’s National Social Media Strategist discovered the posts, Chipotle’s regional manager and Jennifer Cruz, general manager of the Havertown store, met with Kennedy, provided him with a copy of the company’s social media policy and asked him to delete the tweets.

    A few weeks later, in February, Kennedy drafted a petition for employees’ signatures, regarding management’s failure to provide employees with food breaks and rest breaks in accordance with applicable state law. The petition stated that employees were often denied breaks for not getting their work done on time. The petition further stated that failure to provide breaks reduced productivity and increased stress and that the employees hoped to work with management to create a more positive workplace.

    On February 17, 2015, Cruz learned that Kennedy had been circulating this petition and asked to speak with him in the back office. Cruz explained her position on the break policy and asked Kennedy to stop circulating the petition. Kennedy refused, raised his voice and told Cruz she would have to fire him to get him to stop. In response, Cruz told him to leave. On the following day, Cruz processed his termination as “insubordination,” and, on February 19, 2015, when Kennedy was next scheduled to work, he returned to the Havertown store and was told that he had been fired and to go home.

    Section 8(a)(1) of the National Labor Relations Act (NLRA) prohibits employers from interfering with or restraining the exercise of those rights guaranteed by Section 7, which, in short, allows employees to self-organize for the purpose of collective bargaining or other mutual aid. The NLRB has found that an employer violates Section 8(a)(1) when it maintains a work rule that “tends to chill” employees’ exercise of Section 7 rights. Even if the rule does not explicitly prohibit Section 7 activity, if employees could reasonably read the rule do so, then the rule will be found unlawful.

    Chipotle’s social media policy at issue stated, in relevant part, “[i]f you aren’t careful and don’t use your head, your online activity can damage Chipotle . . . . You may not make disparaging, false, misleading, harassing, or discriminatory statements about or relating to Chipotle . . .”

    Under the NLRA, ambiguous rules are construed against the employer and employees’ false or misleading statements are protected unless the employee had a malicious motive. The NLRB found that the word “confidential” was vague and that “disparaging” was overbroad and could easily restrict employees’ Section 7 rights or lead employees to believe those rights were being restricted. Accordingly, the NLRB determined that those particular portions of the policy were violative of Section 8(a)(1) and were likely to have a chilling effect on employees’ Section 7 activities. Chipotle argued that this was an old policy and that it was purely punitive to find a violation based on an outdated policy. Despite this being an old policy, the NLRB found that, because this policy was presented to Kennedy and used as the basis for asking him to delete his tweets, it was a violation. Further, the NLRB found that, although Kennedy acted alone in posting the tweets, his activity was “protected concerted activity” under the Act because the subject matter of wages and working conditions pertained to the interests of all employees.

    When reviewing Kennedy’s termination, the NLRB applied a four-factor analysis to determine whether his otherwise protected conduct was sufficiently egregious to remove it from NLRA protection. The Board considered: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was provoked by an employer’s unfair labor practice. The NLRB found that Kennedy engaged in protected concerted activity when he circulated a petition challenging Chipotle’s denial of employee breaks. Specifically, Kennedy’s solicitation of other employees occurred both off-site and on-site, and his on-site solicitations were brief and did not interfere with any employees’ work. The NLRB focused its analysis on Kennedy’s purported outburst and its cause. Cruz testified that she did not intend to fire Kennedy in their meeting, but she made the decision to fire him after he raised his voice at her and pointed his finger in response to her request for him to stop circulating the petition. Cruz also stated that she felt threatened based on her knowledge that Kennedy had been diagnosed with post-traumatic stress disorder (PTSD) and had a history of inappropriate behavior. The NLRB determined that Cruz’s allegation of Kennedy’s inappropriate behavior was unfounded and that her purported fear was fabricated and a show of blatant disability discrimination. Further, the NLRB found that Cruz terminated Kennedy for his refusal to cease engaging in protected concerted activity in violation of the NLRA.

    As a result of this case, the NLRB ordered Chipotle to offer Kennedy reinstatement and to make him whole for lost wages and other benefits. Chipotle was also ordered to compensate Kennedy for any adverse tax consequences that he might encounter as a result of the back pay, to cease using the policies that violate the NLRA and to post notices of employees’ rights in its stores nationwide.