The National Labor Relations Board (the “Board”) continues its heightened scrutiny of employee handbooks’ social media policies as the Board grapples with the concept of “protected concerted activity” in the era of social media. In an August, 2016 ruling, the Board affirmed an administrative law judge’s decision holding that Chipotle’s social media policy violated the National Labor Relations Act (the “Act”).
By way of background, the case arose when Chipotle terminated an employee for tweeting about the working conditions of Chipotle’s employees and for circulating a petition amongst coworkers that addressed break periods. One of the tweets posted included a news article concerning hourly workers having to work on snow days when other workers were off and public transportation was closed. When asked if the employee would remove the tweets, the employee agreed, and the tweets were subsequently taken down.
In part, the challenged portions of the social media policy were:
“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”
“You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.”
An employer violates Section 8(a)(1) of the Act when it maintains a work rule that reasonably tends to chill employees in the exercise of their Section 7 rights. Section 7 rights include, among others, the right of employees to self-organize, join unions, bargain collectively, and to engage in other concerted activities, such as discussing working conditions and wages.
The Board held that, while neither of the challenged provisions explicitly prohibited Section 7 activity, employees would reasonably construe portions of the provisions to restrict the exercise of Section 7 activity, and could serve to chill employees in the exercise of their Section 7 rights. The Board noted that ambiguous rules are construed against the employer. As such, the Board ruled that Chipotle violated Section 8(a)(1) of the Act by restricting its employees’ Section 7 rights.
The Board’s decision serves as yet another reminder that employers must review and closely scrutinize and parse their social media policies to evaluate not only whether, by its terms, a policy prohibits Section 7 activity, but whether an employee could reasonably construe the policy to prohibit Section 7 activity. In particular, employers should avoid vague or ambiguous verbiage and should consider using expressly defined terms.
As a final word, Chipotle’s social media policy also contained a disclaimer that said, “This code does not restrict any activity that is protected or restricted by the National Labor Relations Act, whistleblower laws or any other privacy rights.” The Board found that this disclaimer did not serve to cure the unlawfulness of the foregoing provisions.