ILMA Compoundings October 2016 - 54

RULES & REGS

Reconsidering Social Media
Policies After The NLRB's
"Chipotle" Decision
Daniel T. Bryant

T

he National Labor Relations Board (NLRB) recently
affirmed part of Administrative Law Judge Susan Flynn's
decision1 that Chipotle violated the National Labor
Relations Act (NLRA) when the company established and
maintained a social media code of conduct (SMCOC) that
prohibited the posting of certain types of statements on
various social media platforms.
In light of the NLRB's decision, it may be beneficial for ILMA
members to review their employee handbooks and any social
media policies "on the books" to ensure compliance.

Chipotle's SMCOC and Case Facts
Chipotle's SMCOC, in part, stated "you may not make
disparaging, false,
misleading, harassing
or discriminatory
statements about
or relating to
Chipotle, our
employees,
suppliers,
customers,
competition,
or investors."
Additionally, it said that,
if employees "aren't careful
and don't use your head, your
online activity can also damage
Chipotle or spread incomplete,
confidential, or inaccurate information."

is that steak bowl really" in response to another Twitter user's
comments that "free chipotle is the best thanks." In response
to another customer's statement, Kennedy tweeted regarding
the guacamole cost at Chipotle, "it's extra not like #Qdoba
[Chipotle's direct competitor], enjoy the extra $2."
Another tweet was directed at Chipotle's executives and chided
them for not working on "snow days" when hourly workers
had to work even if public transportation was shut down. He
tweeted at Corporate Director of Communications Chris
Arnold, "Snow day for 'top performers' Chris Arnold?"
The general manager of the Chipotle franchise involved,
Jennifer Cruz, sat Kennedy down and asked if he would delete
the tweets because they violated Chipotle's SMCOC contained
within the company's crew handbook. Kennedy ultimately
agreed and deleted the tweets; however, a charge subsequently
was filed with the NLRB.

The NLRA & the NLRB's Decision
NLRA § 7 states that, "Employees shall have the right to selforganization, 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, and shall also have the right to refrain from any
or all of such activities..." Additionally, NLRA § 8(a)(1) declares
it is an "unfair labor practice for an employer to interfere
with, restrain, or coerce employees in the exercise of rights
guaranteed in § 7."

Finally, the policy contained the general disclaimer, "This code
does not restrict any activity that is protected or restricted by
the National Labor Relations Act, whistleblower laws, or any
other privacy rights."

The NLRB affirmed Flynn's finding that Chipotle's prohibition
against spreading incomplete, confidential or inaccurate
information violated NLRA § (8)(a)(1)2. Additionally, those
policies that prohibited employees from making disparaging,
false or misleading statements were found unlawful.

In the case, James Kennedy, a Chipotle employee in the
Philadelphia, Pennsylvania, area, tweeted "Nothing is free, only
cheap #labor. Crewmembers only make $8.50hr how much

The reasoning for the determination is particularly relevant
for ILMA members. Flynn outlined that those statements
are protected under the NLRA and the only way to lose

Vol. 66 No. 10 * 54 * October 2016 Compoundings
ILMA Compoundings October 2016

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