Is Your Company’s Social Media Policy Outdated? Chipotle’s Failed Social Media Policy

March 22, 2016 | Bryan Barajas

Chipotle Grill logoA Chipotle employee was caught posting several complaints on social media about the company’s wages and snow day policy.  When the company’s national social media strategist discovered the tweets, the employee was quickly reminded that he was forbidden to disclose confidential information about the company according to the social media policy in Chipotle’s Employee Handbook.  He was told to take down the offending posts, which he did.  Two weeks later he was distributing a petition on employee breaks and was fired for insubordination for raising his voice at his manager. The employee subsequently sued under the NLRA.

Apparently, Chipotle’s social media policy was outdated and did not comply with the current National Relations Board (NLRB) rulings.  An NLRB administrative law judge (ALJ) ordered Chipotle to rehire the employee because his postings were protected “concerted activity” that were covered under Section 7 of the NLRA. The ALJ held that although the policies in question didn’t prevent Section 7 activity explicitly, they could be reasonably construed by employees as doing so.

The ALJ also tore into Chipotle’s social media rule that prohibited employees from damaging the company by spreading “confidential” information on social media, saying that “confidential” was not well-defined.

“The board wants [employers] to be specific so an employee doesn’t think you’re telling them: ‘you can’t talk about what you earn and the terms and conditions of employment,’” says Howard Wexler, an associate at Seyfarth Shaw. He recommends giving employees specific examples of what is and is not considered confidential to further clarify and help the policy withstand board scrutiny.

It was ruled that the employee should not have been asked to delete his critical tweets and should not have been threatened with discipline for circulating a petition about employee breaks.

The ruling, which Chipotle has the option of appealing, shows how tricky it can be to exercise oversight of an employee in a time when the NLRB is eager to protect workers’ social media speech.  Employers can still monitor employees bad-mouthing them on social media, but “The board continues to define and interpret ‘concerted activity’ very broadly,” says Herrick Sovany, attorney and founder at Sovany Law. “As long as the employee speaks to general terms and not directly with regard to himself or herself, it’ll be protected more likely than not.”

If your company has an outdated social media policy, it’s time to ensure it is updated.  While you are at it, make sure that if you are using social media searches in your hiring process they are being done right.




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