In Havertown, Pennsylvania, Chipotle recently had some negative publicity and, for once, E. coli was not the culprit. Instead, James Kennedy, a 38-year-old war veteran, was terminated from Chipotle, after criticizing the company on Twitter and for circulating a petition in store regarding scheduled breaks. Kennedy sued, alleging that his termination violated the NLRA.
One of Kennedy’s tweets contained a news article regarding hourly workers having to work on snow days while other workers were off. The tweet referenced Chipotle’s communications director, asking, “Snow day for ‘top performers’ Chris Arnold?”
Another tweet involved a reply to a customer who tweeted “Free Chipotle is the best thanks.” Kennedy’s response: “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” (To answer Kennedy’s question, in Philadelphia, the cost is $7.80 before tax – without guacamole, of course).
Kennedy also tweeted (what we all think when debating whether we want to add guacamole), “it’s extra not like #Qdoba, enjoy the extra $2.” Kennedy’s hashtag game was strong, with Chipotle’s main competitor getting some free publicity.
A Chipotle area/regional manager asked Kennedy to delete the tweets; Kennedy later complied. The manager also provided Kennedy with a copy of Chipotle’s social media policy (which Chipotle later conceded was outdated).
Kennedy’s displeasure with Chipotle was not expressed only through social media. He circulated a petition around the store suggesting that management had not permitted employees to take all of their scheduled breaks. Kennedy’s GM told him to stop circulating the petition. Kennedy refused, and advised the GM that the only way he would stop is if he was fired. The GM (probably in their best Donald Trump voice) told him to “just leave,” so Kennedy collected his belongings and said adios to his coworkers.
The two challenged sections of Chipotle’s social media policy ruled upon by the NLRB Administrative Law Judge were:
- “If you aren’t careful and don’t use your head, your online activity can also damage Chipotle or spread incomplete, confidential, or inaccurate information;” and
- “You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.”
The Judge explained that, when evaluating the appropriateness of Chipotle’s social media policy, the National Labor Relations Board “balances the legitimate interests of the employer against Section 7 rights of employees.” Section 7 provides employees
“the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
While neither of the two challenged sections explicitly prohibits Section 7 activity, the Judge found that employees
“would reasonably construe portions of these provisions to restrict the exercise of their Section 7 rights, and certain of these prohibitions have been found by the Board to be unlawful.”
The Judge concluded that Kennedy’s tweets concerned wages and working conditions (pay and schlepping in on snow days), and such matters are protected by the National Labor Relations Act. The Judge also held that Chipotle’s request for Kennedy to delete his tweets was unlawful.
The Judge further ruled that Chipotle violated Section 8(a)(1) and ordered, among other things, that Chipotle offer Kennedy reinstatement and pay him any lost earnings; cease and desist from directing employees to delete their social media postings regarding employees’ wages or other terms or conditions of employment; and post at its Havertown location a copy of a notice stating that Chipotle had violated federal law.
The lesson for employers to avoid the fate of Chipotle? Make sure your social media policies are up to date and reflect the increasing protections that the NLRB is giving employee social media activity. Then, make sure management knows what they can and cannot request of their employees.
For those curious, while Kennedy might be bitter about Chipotle’s policies, he still finds the food delicious and was reported as saying that he’d accept his back wages in the form of food vouchers. (That sounds like a good deal to me, unless he really likes guacamole.)
By Brandon Sher of LeClairRyan