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On March 14, 2016, Administrative Law Judge Susan A. Flynn found that Chipotle’s social media policy violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) while ruling in favor of James Kennedy, a Havertown, Pennsylvania man, who was fired after criticizing the company on Twitter last year.
On January 28, 2015, Chipotle’s social media strategist saw that, in response to a customer who tweeted, “Free chipotle is best thanks,” Kennedy tweeted, “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?”
After a supervisor showed Kennedy Chipotle’s social media policy banning “disparaging, false” statements about the company, Kennedy deleted the tweets. Kennedy was fired two weeks later after circulating a petition about workers not being able to take breaks.
Section 8(a)(1) of the NLRA prohibits interference with or coercion of employees in the exercise of their right to self-organization. 29 U.S.C. § 158. This has been interpreted to mean that an employer may not prohibit employee postings that are merely false or misleading. Rather, it must be shown that the employee had a malicious motive. Statements are made with malicious motive if they are made with knowledge of their falsity or with reckless disregard for their truth or falsity.
Therefore, policy prohibitions against false, misleading, inaccurate, or incomplete statements are unlawful. Likewise, prohibitions against derogatory or disparaging statements are unlawful. On this basis, the ALJ found that Chipotle’s social media policy “prohibitions against spreading incomplete, confidential, or inaccurate information and those against making disparaging, false, or misleading statements violate” the NLRA, while “the prohibitions against harassing or discriminatory statements” do not. The ALJ then ordered Chipotle to post signs acknowledging some of its employee policies — and especially the social media rules — were illegal.
A full copy of the ALJ’s decision can be found here.