Daily Labor Report® is the objective resource the nation’s foremost labor and employment professionals read and rely on, providing reliable, analytical coverage of top labor and employment...
By Michael Rose
Aug. 19 — Chipotle Mexican Grill must rescind a social media policy that prohibits employees from spreading “inaccurate information” because the ban violates federal labor law, the National Labor Relations Board found Aug. 18 ( Chipotle Servs. LLC, 2016 BL 267896, 362 N.L.R.B. 72 (8/18/16).
The decision, issued by NLRB Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Lauren McFerran, affirmed a March 2016 decision by an NLRB administrative law judge that centered around a Chipotle location in Havertown, Pa., where an employee circulated a petition and tweeted about working conditions.
Social media policy continues to be a hot area of labor law litigation, especially among fast-food workers. The Chipotle case was brought by an organization seeking to raise wages for fast-food workers, and it shows that the board continues to consider a wide range of social media posts to be concerted activity under the National Labor Relations Act.
The ALJ found that Chipotle violated the NLRA by ordering the employee, James Kennedy, to delete certain tweets, but the board reversed that finding. Kennedy’s tweets to customers didn’t constitute concerted activity, it said.
However, the board affirmed the judge’s finding that its rule prohibiting employees from “posting incomplete, confidential, or inaccurate information and making disparaging, false, or misleading statements” violates the law.
In addition, Chipotle’s termination of Kennedy violated the law because he had engaged in protected activity by circulating a petition among employees at the restaurant.
The petition was “regarding [Chipotle’s] failure to abide by its own break policy,” and Kennedy was terminated after he refused to stop circulating the petition as a manager had instructed him to do, the decision said.
The board also found that Chipotle’s rule against solicitation was overbroad. The rule prohibited solicitation during nonwork time “within visual or hearing range of our customers.”
The board wrote that the rule “is not limited to customer/selling areas, and necessarily includes areas where customers have no right to be physically present but may enjoy some visual or aural access.”
The NLRB ordered Chipotle to rescind its policies on solicitation and social media as well as another policy on “ethical communications” and a ban on discussing politics at work.
In addition, the board ordered that Kennedy be offered reinstatement and back pay.
Chipotle also must post notices for employees at all of its U.S. locations stating that it will rescind the rules, the board said.
Representatives of Chipotle and attorneys representing it didn’t immediately respond to requests for comment Aug. 19.
To contact the reporter on this story: Michael Rose in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Susan J. McGolrick at email@example.com
Text of the decision is at http://www.bloomberglaw.com/public/document/NLRB_Board_Decision_Chipotle_Services_LLC_dba_Chipotle_Mexican_Gr.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)