Can you force an employee to delete critical tweets about the company? NLRB says no.

Chipotle Brandon

Folks, it’s been a real crappy 2016 for Chipotle.

Critical tweets about work get deleted.

Last year, Chipotle’s National Social Media Strategist saw a series of tweets from a Chipotle employee working just outside of Philadelphia. The tweets had a common theme: working conditions:

One of Kennedy’s tweets included a news article concerning hourly workers having to work on snow days when certain other workers were off and public transportation was shut down. His tweet addressed Chris Arnold, the communications director for Chipotle, stating: “Snow day for ‘top performers’ Chris Arnold?” (GC Exh. 3.). In the other tweets, Kennedy replied to tweets posted by customers. In response to a customer who tweeted “Free chipotle is the best thanks,” Kennedy tweeted “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” Then, replying to a tweet posted by another customer about guacamole, Kennedy wrote “it’s extra 30 not like #Qdoba, enjoy the extra $2” (referring to the fact that, unlike the restaurant chain Qdoba, Chipotle charges extra for guacamole).

The employee was later asked to delete the tweets, which he did.

Can a company make an employee delete work-related tweets?

This week, a National Labor Relations Board Administrative Law Judge (in this opinion) concluded that the answer was a resounding no. Because, even though the employee was acting alone, the issued raised in his tweets pertained to other co-workers too.

Section 7 protects employees’ right to engage in concerted activities for the purpose of mutual aid or protection….Kennedy’s tweets concerned wages and working conditions—employees’ pay rates and 35 being required to work on snow days. Wages and working conditions are matters protected by the Act. The issues raised in Kennedy’s tweets are not purely individual concerns, pertaining only to Kennedy. He was not seeking a pay raise for himself, or requesting that he be excused from work when it snows heavily. Receiving low hourly wages and being required to report to work despite heavy snow are issues common to many of Chipotle’s hourly workers nationwide, and certainly to those at the Havertown restaurant. The fact that Kennedy did not consult with coworkers before posting these tweets does not make them individual concerns. It is not necessary that two or more individuals act together in order for the activity to be concerted…Concerted activities include individual activity where “individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.”

Therefore, because the employee intended his tweets as “support for hourly workers in general and Chipotle’s workers in specific,” his tweets constitute protected concerted activity.

How can employers avoid this problem?

Look, employees are going to talk about work. Count on it. And a blanket ban on social media discussions about work would violate the National Labor Relations Act. But, you can — and should — encourage your employees to address work issues directly with co-workers, supervisors, HR, other decisionmakers. In most situations, this direct communication is a more effective way to address workplace issues and resolve problems, than venting on social media.

Image Credit: By User:proshob (Own work) [CC BY-SA 3.0 or GFDL], via Wikimedia Commons
  • Uncertainty Principal

    It is absurd how the National Labor Relations Board has been allowed to eliminate the “concerted” activity requirement for an employee’s conduct to be protected under federal labor law. This decision perfectly typifies the Board’s departure from the actual statutory language. This guy was not engaging in ANY “concerted activity” at all. He didn’t talk to other employees or try to organize them, and not a single other employee indicated that this guy was acting on their behalf. Nothing. He was simply publicly bitching about work — and to customers no less! We all know these people. They invariably try to pretend that they are concerned about others, but they’re just complaining about their own situation. Of course an employer should be allowed to discipline or fire people like this, they’re disparaging the company and very clearly lack good judgment.