Legal Insights

Social Media and the NLRA: Lessons for Hospitality Employers from the NLRB's Chipotle Decision

March 27, 2016
By: Charles W. Spitz

What would you do if you learned that an employee tweeted disparaging remarks about your company, endorsed your competition, and even suggested that your products might be overpriced due to “cheap labor”? Would you terminate employment, premised on a violation of your social media policy? Answer carefully, because a response in the affirmative just might violate the National Labor Relations Act (NLRA).

In a case involving similar facts, a March 14 decision by a National Labor Relations Board (NLRB) Administrative Law Judge (ALJ), determined that Chipotle Services LLC d/b/a Chipotle Mexican Grill’s (Chipotle) instruction that an employee delete certain tweets based on the company’s social media policy violated the NLRA. In addition, the ALJ found that Chipotle’s social media policy itself violated the NLRA. Although Chipotle can appeal the decision, it is consistent with a recent trend from the NLRB regarding social media expression.

Negative Tweets

Chipotle’s problems began when James Kennedy, a server at a Havertown, PA restaurant, posted remarks that were critical of Chipotle to his personal Twitter account. First, Kennedy aimed a tweet at Chipotle’s communications director, criticizing the fact that Kennedy had to work during a snow storm. Next, in response to a positive customer tweet about Chipotle, Kennedy tweeted, in part, “nothing is free, only cheap #labor. Crew members only make $8.50/hr how much is that steak bowl really?” Finally, replying to a customer tweet about guacamole, Kennedy tweeted, “it’s extra not like #Qdoba, enjoy the extra $2” (referring to the fact that, unlike the restaurant chain Qdoba, Chipotle charges customers extra for guacamole).

Chipotle’s national social media strategist discovered the tweets, at which point Kennedy was shown an outdated version of the company’s social media policy and asked to delete the posts in question. Kennedy took down the tweets, but then circulated a petition alleging that employees were not receiving rest breaks as mandated by state law. Chipotle terminated Kennedy’s employment following a meeting with his supervisor about the petition.

Social Media Policy and the NLRA

In its March 14 decision, the NLRB ALJ came down hard on Chipotle’s social media policy, notwithstanding the fact that the policy was outdated. Adhering to a string of NLRB decisions, the ALJ held that although the policies in question did not explicitly prohibit NLRA-protected activity, they could reasonably be interpreted by employees as doing so, and therefore nonetheless violated the NLRA.

The ruling criticized Chipotle’s social media policy prohibition of “disparaging,” “false” and “misleading” statements, holding that employers may only prohibit such statements where they are the product of malicious intent. The ALJ further rejected Chipotle’s prohibition on posting “confidential” information on social media, calling it “vague and subject to interpretation,” because "confidential” was not well defined and the prohibition of it “could easily lead employees to construe it as restricting their” NLRA rights. By contrast, the ALJ found that Chipotle could lawfully prohibit “harassing” and “discriminatory” statements, as it has a legal obligation to do so. 

The ALJ also rejected Chipotle’s attempted disclaimer, which provided that the policy was not intended to limit “any activity that is protected by the National Labor Relations Act, whistleblower laws, or other privacy rights.” Because the specific prohibitions at issue violated the NLRA, the ALJ held, this disclaimer was immaterial.

Even though Chipotle used an outdated version of its social media policy to counsel Kennedy, the ALJ nonetheless held Chipotle responsible for this outdated policy, holding that it was “immaterial whether . . . [Kennedy’s] postings would violate the current policy . . . the fact that [Chipotle] erroneously relied on the old policy does not relieve [Chipotle] of responsibility for . . . the actions of managers in reliance on the old policy.”

Chipotle also violated the NLRA, the ALJ held, when it asked Kennedy to delete his tweets (and implicitly directed him not to post similar content in the future) because the tweets constituted NLRA-protected concerted activity. Kennedy’s unilateral actions were deemed “concerted” – and therefore entitled to NLRA protection – because his tweets concerned “issues common to many of Chipotle’s hourly workers nationwide” and could potentially “educate the public and create sympathy and support for hourly workers in general.”

Finally, the ALJ held that the company violated the NLRA by prohibiting Kennedy from circulating the petition challenging Chipotle’s break policy, and for terminating Kennedy’s employment. As a remedy, the ALJ ordered, among other things, that Chipotle reinstate Kennedy with back pay and post notices at several stores informing employees that it had violated the NLRA.

Lessons for Hospitality Employers

As this case illustrates, hospitality industry employers may face myriad challenges when attempting to regulate employees’ social media activity. Certainly, social media has proven to be a valuable marketing, advertising and crowd-sourcing tool in the hospitality industry. The ubiquity of these mediums with potential and existing customers and guests underscores the need to monitor conversations around a company a brand, and take proactive measures to maintain a positive reputation on platforms such as Twitter, Facebook, and Instagram. What’s more, because many jobs in the hospitality industry are held by younger workers who use social media regularly, there is a constant potential that a disgruntled employee venting about work issues could damage the company’s online reputation.

While employers are free to monitor employees’ social media posts, the Chipotle case demonstrates that the legality of disciplining employees for “badmouthing” the company depends on the nature of the employee’s conduct. Disparaging remarks unconnected to any matter protected by the NLRA are likely not protected and may result in discipline. If an employee posts about issues regarding wages, benefits, or other working conditions, however, even using profane language, the NLRB may view that conduct as protected concerted activity. Additionally, wherever an employee purports to state “group” complaint, the activity likely will be considered “concerted,” regardless of whether any other employee actually participates. For these reasons hospitality employers must carefully evaluate any perceived employee misconduct in light of the broad protections extended to employees’ social media expression under the NLRA.

Hospitality industry employers should review their social media policies, other workplace policies and training protocols to ensure compliance with the NLRA. Policies should be as specific as possible, and avoid broad and vague prohibitions of, for example, disparaging statements about the company. They should provide specific examples of prohibited conduct so that they effectively communicate the nature of the prohibitions. To avoid a Chipotle-like outcome, managers and supervisors responsible for policy enforcement must have current versions of social media policies and must be trained on what they prohibit.

However, regardless of the employer’s social media policy intent, the NLRB’s position is well-established that social media policies that restrict employees’ ability to discuss workplace issues infringe on their right to engage in concerted activity and therefore violate the NLRA.