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NLRB Says Employees Spreading Inaccurate Information is Protected Conduct

    Client Alerts
  • August 31, 2016

Yet another chapter in the National Labor Relations Board’s assault on employer social media policies. Earlier this month, the Board rejected Chipotle’s policy that prohibited employees from “posting incomplete, confidential, or inaccurate information and making disparaging, false, or misleading statements.” In Chipotle Servs., LLC, the Board concluded that the policy violated Section 7 of the NLRA because it interfered with employees’ rights to engage in protected concerted activity.

In this case, an employee upset over working conditions at the restaurant began circulating a petition and issued several tweets that the company considered inaccurate and damaging to the business. Chipotle instructed the employee to remove the tweets, and he filed an unfair labor practice claim, alleging that the employer had retaliated against him for his engaging in protected concerted activity.

The Board concluded that the policy was overbroad because it could be, and in this case was in fact used to interfere with an employee’s complaints about working conditions. The fact that concerted activity may include inaccurate, incomplete or confidential business information does not give employers the right to take disciplinary action. In addition to reinstating the employee with back pay, the Board ordered Chipotle to rescind the social policy nationwide, and post a notice in each of its restaurants notifying employees of this decision.

By now it is clear that the NLRB will reject any attempt by employers to impose limits on employee social media conduct, with the exception of very narrowly defined behaviors such as sexual harassment or disclosure of trade secrets. Employers may want to rethink their strategy of attempting to regulate employee social media conduct, and instead concentrate their resources on public relations and other measures intended to counteract negative publicity resulting from employee social medial use.