By: Carol G. Schley, Clark Hill PLC
The National Labor Relations Board (“NLRB”) continues to find employment handbook policies unlawful, even in non-unionized workplace settings. A recent example involved the workplace policies of Chipotle.
In this case, a Chipotle restaurant employee, James Kennedy, was active on Twitter. One of his tweets concerned a news article regarding hourly employees being required to work on snowy days when public transportation was shut down. In response to this article, Kennedy directed a tweet to Chipotle’s communication director stating, “Snow day for ‘top performers’ Chris Arnold?” In another instance, a customer tweeted, “Free chipotle is the best, thanks.” Kennedy responded, “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” Finally, in response to a customer’s tweet about guacamole, Kennedy tweeted, “it’s extra not like #Qdoba, enjoy the extra $2.”
Chipotle’s social media strategist saw Kennedy’s tweets and requested that his regional manager meet with Kennedy and ask him to delete them. She also forwarded the regional manager a copy of Chipotle’s social media policy, which, unbeknownst at the time, was an outdated version of that policy.
The regional manager and the manager of the restaurant met with Kennedy, gave him a copy of the social media policy that the social media strategist had forwarded, and asked him to delete the tweets. Kennedy agreed and did so.
As a separate matter, Kennedy became concerned that workers at the restaurant were not being allowed to take all of their work breaks as promised by company policy. Kennedy drafted a petition for employees to sign on this issue. His store manager witnessed him speaking with a coworker in the food prep area about the petition. She met with Kennedy and asked him to stop circulating it, but Kennedy refused. The discussion between the store manager and Kennedy became heated, with Kennedy raising his voice, and pointing toward the store manager during the discussion. The store manager told him to “just leave,” which Kennedy took as him being fired. However, the store manager later testified that she did not intend to terminate Kennedy’s employment when she said this, but just wanted him to leave the office where they were meeting. Upon further reflection, however, she decided to terminate Kennedy’s employment due to his demeanor during the meeting, categorizing his termination in the company’s database as being due to “insubordination.”
Upon his termination, Kennedy filed a charge under the National Labor Relations Act (the “Act”) asserting that various provisions in Chipotle’s employee handbook were unlawful, and also that his termination was unlawful.
In deciding Kennedy’s charge, the administrative law judge found that several provisions in Chipotle’s social media policy unlawfully interfered with employees’ rights under Section 7 of the Act. These rights include the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. The social media rules in the Chipotle handbook struck down by the judge included:
- A prohibition on employees spreading false misleading, inaccurate and incomplete statements – The judge found this provision overly broad, holding, “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.”
- A prohibition against disclosing confidential information – The judge found that because there was no explanation in the policy of what constituted “confidential information,” this provision was too vague and “could easily lead employees to construe it as restricting their Section 7 rights.”
- A prohibition against making “disparaging” comments –The court found that this prohibition could “easily encompass statements protected by Section 7.”
The judge also held that a disclaimer in the social media policy that said the policy did not restrict any activity protected under the Act was insufficient to save the provisions from being found unlawful.
In addition, the judge held that Chipotle violated the Act when it directed Kennedy to delete his tweets about Chipotle, because the tweets “concerned wages and working conditions… Wages and working conditions are matters protected by the Act. The issues raised in Kennedy’s tweets are not purely individual concerns… [but] are issues common to many of Chipotle’s workers nationwide….” The judge found that the fact that social media policy at issue was outdated to be irrelevant, since the outdated policy was relied upon by Chipotle when it asked Kennedy to delete his tweets.
The judge also held that Chipotle violated the Act by directing Kennedy to stop circulating his petition about breaks in the workplace, as “he did not draft it on his own behalf, but on behalf of all employees….”
Finally, the judge held that Chipotle violated the Act by discharging Kennedy, finding his discharge was due to his protected activity under the Act, and not because of his behavior during the meeting with his supervisor where he raised his voice and pointed toward her. “Protected speech remains protected ‘unless found to be so violent or of such serious character as to render the employee unfit for further services.’” Here, the judge found, “Kennedy’s conduct was fairly mild under the circumstances….”
On appeal, the National Labor Relations Board affirmed the judge’s decision against Chipotle, and ordered various forms of relief, including reinstatement of Kennedy’s employment with back pay, deletion of all records reflecting Kennedy’s termination, amendment of Chipotle’s workplace policies found to be in violation of the Act, and postings in Chipotle’s workplaces and electronic postings advising employees of Chipotle’s violation of the Act.
Chipotle is one of many cases recently decided by the NLRB where employer workplace policies have been found to unlawfully chill non-unionized employees’ Section 7 rights. As the law in this area is ever evolving, it is important that employers periodically review all of their workplace policies, including, but not limited to, social media policies, workplace recording policies, and confidentiality policies, to confirm that they are compliant with the law. Given the complexity of this task, it is recommended that employment counsel assist with any policy review.
Carol G. Schley is a member of the Detroit SHRM Legal Affairs Committee and an attorney at the law firm Clark Hill PLC. She can be reached at firstname.lastname@example.org or (248)530-6338.
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