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Chipotle's Illegal Social Media Policy: Asked Employee to Delete Tweet

Things haven’t been good lately for the widely-popular burrito chain Chipotle. From ongoing e-coli outbreaks to a sexual discrimination suit earlier this year, the Mexican grill is now facing violations of Section 8(a)(1) of the National Labor Relations Association (NLRA).

An administrative law judge deemed Chipotle’s social media policy illegal and is requiring the chain rehire a Philadelphia-area employee who was terminated after criticizing the company on Twitter last year.

Illegal Policies

Plaintiff James Kennedy was reprimanded for posting on Twitter against a “free burrito” promotion and was dismissed two weeks later, when he was found collecting signatures petitioning for the mandated breaks owed during employees’ shifts. Kennedy’s tweet, sent in response to a free burrito giveaway, read: “@ChipotleTweets, nothing is free, only cheap #labor. Crew members make only $8.50hr. How much is that steak bowl really?”

The company was ordered to cease prohibiting employees from posting on social media regarding employees’ wages or other terms or conditions of employment.

Chipotle’s social media strategist emailed the regional manager for the Haverford, Pennsylvania location, forwarding the tweet. The next day, the restaurant’s general manager approached the Kennedy in the kitchen and said she wanted to talk to him in the dining room. They went out and sat with the regional manager, who asked the employee if he was familiar with the company’s social media policy. Under pressure, Kennedy ultimately agreed to delete the tweet, which he did later that day.

The Chipotle social media policy at issue states, “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.”

[sws_pullquote_right] See Also: Workers Who Criticize Their Employers on Social Media Can’t Be Fired [/sws_pullquote_right]

Concerted Activity

Judge Susan Flynn not only struck down Chipotle’s social media policy as violating labor laws, she also ordered the burrito chain to post signs acknowledging that some of its employee policies - especially the social media rules - were illegal. Kennedy's manager testified at the hearing that she fired Kennedy, a war veteran, because she was concerned he would become violent with her after arguing about his right to collect signatures on the meal break petition.

Employers may not prohibit social media postings of false, misleading, incomplete, disparaging or inaccurate information, according to the ruling in Lafayette Park Hotel. In order to lose the NLRA’s protection, employers must demonstrate that the employee had a malicious motive in posting the material. If employers choose to retain policies regarding “confidential” company information, the word “confidential” must be defined within the employer’s policy. Otherwise, this prohibition will be deemed a violation of Section 7.

The bottom line: Kennedy’s tweet was protected concerted activity because they had the purpose of “educating the public and creating sympathy and support” for hourly workers in general and Chipotle’s workers in specific. The tweet did not pertain to wholly personal issues relevant only to the employee but were truly group complaints and were therefore protected.

Kennedy, whom Chipotle has been ordered to reinstate and pay back wages, said he'd happily accept his back wages in the form of free Chipotle food vouchers. "You cannot deny that their food is delicious, but their labor policies were atrocious," Kennedy said.

The case is Chipotle Services LLC dba Chipotle Mexican Grill (March 14, 2016).

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