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Social Media Policy Cannot Prevent Employee from Negative Responses to Customer Tweets

    Client Alerts
  • April 12, 2016

The National Labor Relations Board continues to interpret Section 7 of the NLRA to prevent employers from adopting social media policies that restrict employees’ ability to publically complain about their terms and conditions of employment. Last month, a federal Administrative Law Judge interpreted these rulings to prohibit Chipotle from requiring an employee to remove negative responses to customers’ tweeted compliments to the restaurant chain.

The employee in question began a series of tweets complaining about the company’s inclement weather policy. He followed these with responses to favorable customer tweets, reminding the customers about the cost of Chipotle’s food and the lack of relationship between such expense and the wages paid to employees. He then complimented the pricing policies of one of Chipotle’s competitors. The company requested that the employee remove the tweets, and he was subsequently fired based on disputes with a manager. He filed an unfair labor practice charge with the NLRB, contending among other things, that the Chipotle social media policy violated his rights to engage in protected concerted activity.

The ALJ agreed, declaring multiple parts of the Chipotle policy (which was subsequently changed) contrary to the employee’s Section 7 rights, along with the request that he delete the offending tweets. This decision represents a very broad reading of the already expansive NLRB view of Section 7 rights. The ALJ concluded that the employee’s complements about Chipotle’s competitor’s food and pricing constituted complaints about the employer’s terms and conditions of employment in the context of his other tweets. In other recent decisions, the NLRB has found that an employee’s public criticisms of the employer’s products or services are protected conduct. Also, the ALJ had no difficulty concluding that tweets aimed at customers constituted protected concerted activity, even though there was little evidence that other employees were involved in the exchanges.

Based on the continuing expansion of employee Section 7 protections, employers need to constantly monitor whether their social media policies remain in compliance with the NLRB’s latest decisions. Basically, any policy that contains broad restrictions on employee social media use, or includes vague or undefined definitions of restricted behavior will likely violate these guidelines. Better social medial policies avoid such sweeping statements, and instead include specific examples of permitted and impermissible online behavior.