Disparaging Company Tweets May Be Protected

Guidance for HR from the NLRB

The National Labor Relations Board continues to intensify its campaign against overly restrictive workplace social media policies. The latest target: company rules that prohibit certain activity among employees using social media. A corporation’s reach in this regard may not be nearly as long as management might like. Read on for more detail.

By: Patty Tehrani

Do employees have a right to complain about their jobs and employers on social media?

Another recent decision delivered by National Labor Relations Board (NLRB) regarding employee tweets may give some insights into this issue. But before we delve into this case, let’s consider the basis of the NLRB’s authority in the area of social media. The agency is a key enforcer of union laws and regulations. But it’s the NLRB’s responsibility for interpreting and enforcing the National Labor Relations Act (NLRA) that gives it a much broader charge, since the NLRA applies to all employers, unionized or not. And social media is covered through the NLRA’s protection of an employee’s right to engage in “concerted activity” under Section 7 of the statute.  This protection extends to employee discussions about pay, work conditions or even safety concerns.

With that in mind, let’s examine the recent NLRB case in which a Chipotle employee in Pennsylvania was unhappy with his job and took to social media to air his grievances on Twitter. He tweeted about several things, but following a warning by his manager and after circulating a petition that alleged workers weren’t able to take breaks, he was terminated for violating the company’s social media policy. Chipotle argued that management was concerned that as an Iraq war veteran with post-traumatic stress disorder, the employee might become violent at work.

Following a claim filed by the employee in 2015, on August 18 the NLRB upheld a March ruling by an administrative law judge against Chipotle. The NLRB found that the company went too far with their social media policy and other policies and ordered Chipotle to:

• Amend four of its policies that it found to be illegal, namely:
  1. A confidentiality policy that “unlawfully limits the use of [Chipotle’s] name.”
  2. A policy that prohibited employees from discussing “politics or religion in public.”
  3. A rule that prevents workers from soliciting support from coworkers against a workplace policy “in visual or hearing range of our customers.”
  4. An “ethical communication” policy that instructs workers to avoid “exaggeration” or “colorful language” when discussing people.

• Post signs acknowledging that some of its employee policies (specifically the social media rules) were illegal.
• Reinstate the employee within 14 days and give him back pay for the time he was unemployed since his termination in 2015.

For the NLRB decision, click here.

What should you do?

As a result, employers must be careful that their social media policies, while prohibiting unwanted conduct – such as revealing confidential information or making disparaging comments about the employer – do not impose undue restrictions on protected activities. Chances are, your company already has a social media policy and most likely some of your employees may be griping about their jobs and their bosses on social media. So, how do you regulate social media activities by your employees?  Your best bet is to work with your human resources, legal and compliance contacts to reassess your code of conduct, social media policies and employee handbooks. In conducting your assessments, consider the following:

• Be mindful of the NLRA requirements and NLRB decisions: Don’t assume the NLRA does not apply to your company. As noted above, the NLRA applies to a business regardless of whether any portion of its workforce is unionized.  Additionally, the NLRB decisions should be examined carefully, as well as any applicable state regulations to better understand what is prohibited and what is not.
• Content of Policies: A couple of drafting considerations for your policies:
  • Do not include overly broad statements and ambiguous words in order to avoid possible violations of Section 7 of the NLRA.  Rather, following the guidance from the NLRB in its decisions, it would be prudent to include specific examples of prohibited conduct.  For example, if your policy has a provision prohibiting “improper behavior,” make sure you include examples of what this is (e.g., stalking, bullying, etc.).
  • Include a “Savings Clause” or disclaimer designed to exclude protected Section 7 activity from the scope of these documents.  While such a clause is not an automatic cure for an otherwise unlawful and overly broad provision, it certainly helps and there is no downside in including it.

In the end, make sure you tailor your documents to fit your needs, but also in a manner that does not violate the NLRA while factoring in the guidance from the NLRB decisions.