According to this EmployNews report, the National Labor Relations Board continues to interpret the National Labor Relations Act to prohibit social media policies that restrict employees’ ability to publically complain about their working conditions, even when those communications may be disparaging to their employer. Most recently, Chipotle Mexican Grill bore the consequences of the NLRB’s efforts.

The Chipotle case…

A Chipotle employee published a series of tweets complaining about the company’s inclement weather policy, the cost of Chipotle’s food and the lack of relationship between its expenses and employee wages, then topped it off by complimenting a competitor’s pricing policies. Chipotle apparently took a dim view of the posts and asked him to delete them. After he was subsequently fired due to disputes with a manager, the employee filed an unfair labor practice charge with the NLRB contending, among other things, that Chipotle’s social media policy violated his right to engage in protected concerted activity.

The ALJ agreed, broadly interpreting Section 7 of the NLRA to protect the employee’s compliments about Chipotle’s competitor’s food and pricing as complaints about the terms and conditions of his employment. According to EmployNews, 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.”

Action steps… The NLRB’s efforts to protect social media communications by employees has been picking up steam for several years, dating back at least to 2012. Since that time, numerous NLRB actions, including the Chipotle case, have made it clear that polices containing broad restrictions on employee social media use or vague or undefined definitions of restricted behavior will likely be problematic.

In this Featured Article, Stacy Wood offers the following tips for preparing a compliant social media policy:

• Avoid using a generic, form policy;
• Include an introductory paragraph that provides an explanation of the nature of issues and business risks associated with social media to address and provide context for some of the prohibitions contained in the policy;
• Make it clear that employees can engage in protected speech and that the policy is not intended to discourage discussion of or efforts to change working conditions and/or terms of employment;
• Emphasize personal responsibility for representing the company in a professional manner;
• Do not just forbid employees from disclosing confidential or proprietary information, but also define what constitutes sensitive, proprietary or confidential information;
• Avoid over breadth and provide specific examples in the policy regarding what is and what is not permitted to give context; and
• Do not subvert the benefits to the company from social networking by inadvertently deterring employees from legitimate and useful social networking.

Ms. Wood also warns employers to think twice before disciplining or discharging an employee based on a social media post.