Social Media for Employers – Too Much Risk for the Reward?

Suppose you own a restaurant. To drive sales and improve customer satisfaction, you set up a company Twitter account to notify customers of deals and to allow for feedback. One day, your manager (who monitors the account) notices an employee of yours has been posting critical remarks about management. For example, after a customer posts a statement of gratitude for your good food, the employee tweets a reply claiming the restaurant pays employees poorly. The employee posts several other tweets about pay and work-related issues in reply to customer posts. Naturally, you’re perturbed.

What Do You Do? Can you Discipline The Employee?

Chipotle Learns the Hard Way

As you probably figured out, the above scenario is a real-life example. The restaurant involved is a Chipotle Mexican Grill located in Havertown, Pennsylvania. On March 14, 2016, a judge decided this Chipotle franchisee (Chipotle, for ease) violated the federal National Labor Relations Act (NLRA) by creating an unlawful social media policy, by requesting the employee delete critical tweets, and by disciplining the employee after he circulated a rest-period petition.

Two provisions of Chipotle’s social media policy became issues in the case:

1. “You (employee) may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.”
2. “If you (employee) aren’t careful and don’t use your head, your online activity can also damage Chipotle or spread incomplete, confidential, or inaccurate information.”

Chipotle’s social media policy also carried a disclaimer stating it did not restrict any activity covered by the NLRA, any whistleblower laws, and any other privacy rights.

Chipotle requested the employee delete his critical tweets. The employee complied. Soon after however, the employee circulated a rest-period petition (on personal time). After a tense meeting with management, and after the employee refused to drop the petition, he was terminated.

1. Employee Rights Under The NLRA

Section 7 of the NLRA gives employees the rights to form and join unions, to collectively bargain, and to engage in other “concerted activities” (this is a key term) for the purpose of mutual aid or protection (of other employees).

Section 8 prohibits employers from interfering with the employee rights in Section 7. Employers cannot enforce a rule that “reasonably tends to chill” an employee’s exercise of his/her Section 7 rights. For example, employers cannot discipline, or threaten to discipline, employees for union activity. We highly recommend employers review Section 8 and consult an experienced and knowledgeable labor law attorney with questions.

1. The Chipotle Decision

Chipotle’s social media policy may seem innocuous (perhaps you even have a similar policy). However, the judge ruled the following:

1. NLRA protects false and misleading statements – Chipotle’s prohibition against “false and misleading” statements was unlawful. Employers cannot prohibit false and misleading social media posts by employees, if the employee is exercising a Section 7 right.
2. Prohibiting disclosure of “confidential” information may be unlawful – Chipotle’s social media policy did not define the term “confidential.” The judge decided “confidential” could reasonably be interpreted to interfere with an employee’s Section 7 rights (the judge did not explain how, exactly).
3. Prohibiting “disparaging” posts may be unlawful – Chipotle did not define the term “disparaging.” The judge decided “disparaging” could be interpreted to prevent an employee from exercising his/her Section 7 rights (again, no explanation given).
4. Chipotle’s request to delete tweets was unlawful – The judge decided the employee’s tweets were protected by the NLRA because they concerned wages and working conditions. Chipotle’s request the employee delete these posts was unlawful.
5. A single employee’s posts can be “concerted” activity – If a single employee posts about an issue that may concern other employees, the posts may be “concerted” activity (thus falling under the NLRA’s protections).
6. Chipotle’s disclaimer had no legal effect – The judge gave no legal weight to Chipotle’s disclaimer.
7. Termination was unlawful – The employee’s rest-period petition was protected under the NLRA. His termination for circulating the petition was unlawful.

California Labor Code Section 980

California has its own social media law. Employers cannot require employees to:

1. Disclose social media usernames and passwords.
2. Log on to social media accounts in the employer’s presence.
3. Divulge any personal social media.

Employers cannot discipline employees who refuse unlawful employer requests for social media information. The exceptions to these prohibitions are use of employer-issued devices and for investigations into employer misconduct or law-breaking.

The Take-Away

Reading this, you might conclude that a social media account isn’t worth the risk. We wouldn’t blame you. However, if you do use social media to promote your business, consider the following:

1. Define every term and make your social media policy clear. Chipotle lost in part because it didn’t define the terms “confidential” and “disparaging” in its policy. Remember that the judge found Chipotle’s ban of “false and misleading” statements to be unlawful. Consult an experienced and knowledgeable labor law attorney to help you create a precise and enforceable social media policy.
2. Remember that protected “concerted” activity can involve a single employee. If a social media post concerns wages or working conditions, assume it’s protected, even if only one employee is involved.
3. Do not request an employee delete posts before consulting an experienced and knowledgeable labor law attorney. Even a mere request, without any threat of discipline, can be unlawful.
4. Do not ask or require employees to divulge social media information without consulting an experienced and knowledgeable employment lawyer. According to the language of California’s law, it might be illegal to ask if an employee has a Facebook account!

To close our story for now, Chipotle was ordered to pay lost earnings to the employee. The company must also display a notice in every one of its franchises nationwide stating the company’s social media policy is unlawful and is being rewritten. Check back for updates on this case and on other social media labor law issues.