Can You Force an Employee to Delete Critical Tweets About the Company?

By Eric B. Meyer

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

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 you 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.” That’s 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 co-workers 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.”

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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.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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