Is Tweeting A Protected Concerted Activity?

According to the NLRB’s recent ruling in Chipotle Servs. LLC, 2016 BL 76781, tweeting can be a protected activity. In that decision, the presiding ALJ determined that Chipotle violated the NLRA when it directed an employee to delete his tweets and also that its social media policy was unlawfully overbroad and vague.

James Kennedy, a crew member at a Pennsylvania Chipotle restaurant, had tweeted a news article concerning hourly workers having to work on snow days. He also sent out a directed tweet to Chipotle’s Communications Director: “Snow day for ‘top performers’ Chris Arnold?” And, in response to a customer’s tweet that, “Free chipotle is the best thanks”, Kennedy had tweeted, “nothing is free, only cheap #labor. Crew members only make $8.50 hr how much is that steak bowl really?”

When Chipotle’s Social Media Strategist discovered Kennedy’s tweets, she forwarded them to his restaurant manager and area manager, who requested that Kennedy delete the tweets based on Chipotle’s social media policy. Kennedy complied with their request.

The ALJ determined that Kennedy’s tweets constituted protected concerted activity for the purpose of mutual aid or protection because the tweets concerned wages and working conditions that were issues common to many Chipotle workers nationwide and were made with the goal of improving terms and conditions of employment. Because his tweets were protected concerted activity, the ALJ found that Chipotle violated Section (8)(a)(1) of the NLRA when it told Kennedy to delete them, even though Chipotle did not discipline him.

The ALJ also took issue with two of the provisions in Chipotle’s social media policy:

• “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.”

The ALJ found the prohibition against false, misleading, inaccurate and incomplete statements to be unlawfully overbroad on the grounds that an employer may not prohibit postings that merely are false or misleading. Rather, it only can prohibit such statements if made with malicious motive – or with knowledge of their falsity or reckless disregard for their truth or falsity. The ALJ also determined that the term “confidential” information, which lacked a specific definition, and the prohibition against “disparaging remarks” were vague and ambiguous and subject to an interpretation that easily could lead employees to construe such provisions as restricting their Section 7 rights. Notably, the ALJ ruled that the social media policy’s disclaimer that “[t]his code does not restrict any activity that is protected or restricted by the National Relations Act…” did not serve to cure the unlawfulness of these two provisions.

As this decision confirms, the NLRB continues to be very active in seeking to enforce employees’ NLRA rights based on social media activity. Both non-unionized and unionized employers are reminded to carefully analyze any adverse action they consider taking against an employee for social media activity that reasonably relates to working conditions particularly where it appears the employee could be seen as engaging other employees. In addition, as we regularly have discussed in previous posts, given the NLRB’s propensity to find social media policies unlawful wherever there may be some overbreadth or ambiguity, employers should review their social media policies to ensure that any prohibitions are narrowly tailored and include specifically defined terms.