Chipotle Must Take Worker Social Media Policy Off the Menu

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.

Reversal of One ALJ Finding

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.

Solicitation Rule Overbroad

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 mrose@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.