Most employers prefer that employees not discuss their wages with people they know. They definitely prefer that employees not complain about their pay on Twitter. So when a Chipotle employee at a Haverford, Pa., restaurant did exactly that, the company asked him to delete the posts. Eventually, the company fired the worker. However, earlier this year, an administrative law judge with the National Labor Relations Board (NLRB) ordered Chipotle to rehire the employee because the company’s social media policy violated the National Labor Relations Act (NLRA).
In January 2015, the employee tweeted several complaints about working on snow days. He also used Twitter to express his dissatisfaction about hourly wages ($8.50). Soon after, a supervisor told the crew member that the tweets violated the company’s social media policy, which prohibited employees from making disparaging and false statements about Chipotle. The employee took the posts down, but was fired several weeks later for organizing a petition claiming that workers weren’t getting their required breaks.
After the crew member was fired, the Pennsylvania Workers Organizing Committee filed an unfair labor practice charge on his behalf. The NLRB’s general counsel then filed a complaint against the company for its social media policy and for firing the employee.
In her March ruling, Administrative Law Judge Susan A. Flynn ruled against the company, claiming the employee’s rights to tweet were protected under the NLRA. “Having determined that [the employee]’s tweets satisfy both prongs of the analysis they were protected concerted activity and were for the purpose of mutual aid or protection — I further find that the Respondent’s request that [the employee] delete those tweets was unlawful, although no discipline was imposed on him,” the ruling noted.
The employee is among the nearly two-thirds of American adults who use social networking sites, according to the Pew Research Center. As the number of people using social media to vent about problems grows, companies have become more vigilant about monitoring their online reputations. That includes making sure that their own employees don’t mock or insult them on Facebook, Twitter, and other sites. However, in recent years the NLRB has regularly ruled that employees have the right to complain and even insult their employers online, as long as doing so constitutes “protected activity.” When developing policies around how workers can talk about their workplaces on social media, companies must be careful that they don’t violate free speech laws.
Social Media and the NLRA
While it may seem like a stretch that employees have a legal right to bash their employers on social media, the NLRA protects the right of employees to engage in “protected concerted activities.” Those include group actions to join a union and improve wages, benefits, and overall working conditions. Section 7 of the NLRA guarantees employees, “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”
The NLRB began receiving charges in its regional offices related to employer social media policies in 2010. In March 2015, NLRB General Counsel Richard F. Griffin Jr. released a report that looked at issues in employee handbooks that could be “reasonably construed” as having a chilling effect on employees’ Section 7 activity. The 30-page report compares legal and illegal handbook rules, and analyzes rules of a large employer that the general counsel found unlawful.
The NLRB Faces Criticism
The Chipotle case is just one of many where the NLRB ruled that employees were allowed to criticize their employers online because they were exercising their Section 7 rights. In another high profile case involving a worker at Pier Sixty in New York, the NLRB found that an employee had a right to post a profane rant about his manager and his manager’s family on Facebook since the message involved a bid for unionization, along with a complaint about alleged workplace abuse.
That case began in 2011, when Pier Sixty workers began considering unionizing, in part because they felt they were being disrespected. Two days before a unionization election in October 2011, an assistant banquet director criticized employees for talking among themselves during an event. One of the workers was upset by the manager’s comments and responded by using his mobile phone to post a pro-union Facebook message visible to the employee’s Facebook friends, including 10 of his coworkers.
The day after Pier Sixty employees voted to unionize, the employee deleted his post. About two weeks later, the company fired the employee for violating company policy, based on the Facebook posts.
A judge initially sided with the employee and the NLRB narrowly affirmed the ruling in March 2015 by finding the worker had been wrongly fired.
Rulings like these have raised alarms at the U.S. Chamber of Commerce, which recently blasted the NLRB’s approach to handbook policies, including social media, in a report titled “Theater of the Absurd: The NLRB Takes on the Employee Handbook.”
The Chamber accused the NLRB of changing in recent years, ditching impartiality and becoming dominated by a decidedly pro-union majority.
The 43-page report lays out numerous cases that demonstrate the “sweeping impact of the NLRB’s increasingly biased, and some would say irrational, policy agenda,” according to the Chamber.
Given the recent NLRB decisions, companies need to be very careful when crafting their social media policies. While companies don’t want their own employees destroying the reputation of those who sign their paychecks, employers should try to avoid running into trouble with the NLRB. To achieve that, companies can take several steps:
• Review current social media policies
Companies should look closely at their current social media policies in light of recent NLRB rulings. This should be done in close consultation with in-house counsel, the HR department, and outside counsel who understand the issues at stake. Social media policies should reflect that comments about wages, working conditions, and unions have different protections than other types of complaints.
• Use specific language
The NLRB has raised red flags over many social media policies for being too vague. In response, companies should try to craft policies that are as specific as possible. For example, generally banning profanity in social media posts that relate to the company may get an employer into trouble, as Pier Sixty found. Yet tying inappropriate behavior on social media posts to discriminatory or harassing behavior has been approved by the NLRB.
• Discipline carefully
Most importantly, when companies become aware of potentially problematic social media posts by employees, they should proceed very carefully with disciplinary actions. It’s important to consult with HR and attorneys to ensure that posts aren’t protected under the NLRA.
In recent years, the NLRB has reviewed dozens of social media policies. And the agency has often ruled against employers, even when workers have publicly insulted and disparaged their employers online. Companies need to understand the issues involved and working closely with experts in order to make sure their social media policies don’t result in regulatory actions.