The line between personal gripes and protected concerted activity seems to be moving again. We have reported frequently over the past few years about NLRB findings of unfair labor practices (and subsequent court action affirming those findings) when employees used social media to express their dislike over wages, hours or other terms and conditions of employment. Although different than what was typically thought of – pre-social media – as concerted activity, where employees would get together and voice their common complaints, the NLRB routinely finds that these same type of exchanges on Facebook, etc. are also protected, even though members of the public might read them as well, because they are just another way for employees to provide mutual support and aid in expressing concerns about their jobs. Central to these findings though, was always the fact that two or more employees were involved in the exchange.
Now comes a case from the NLRB where it finds that a sole employee, tweeting into the universe, his complaints about his job, is also engaging in concerted protected activity – despite the fact that no other employee was actually acting in concert with him.
In Chipotle Servs. LLC, N.L.R.B. Case No. 04-CA-147314 (Decided Mar. 14, 2016), an employee of the Chipotle Mexican Grill in Havertown, Pennsylvania tweeted his concerns about having to work on a snow day when certain other workers were off and public transportation was shut down. Later, in response to a customer who tweeted “Free chipotle is the best thanks,” the employee tweeted “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” Chipotle’s national social media strategist contacted the regional manager for the Havertown location, requesting that he ask the employee to delete the tweets and discuss the company’s social media code of conduct. Perhaps rethinking his disdain for the $8.50 job, the employee agreed to remove the tweets.
Section 7 of the NLRA guarantees employees the right to “self-organization, to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose of . . . mutual aid or protection . . . .” Section 8(a)(1) protects employees’ Section 7 rights by prohibiting employers from interfering with, restraining, or coercing employees in the exercise of their Section 7 rights.
The Administrative Law Judge (ALJ) held that the employee’s tweets are “concerted activity” under
Section 7 because the tweets concerned “[w]ages and working conditions,” such as being required to work on snow days and pay rates, and “[t]he issues raised in [the employee’s] tweets are not purely individual concerns.” The ALJ explained that the tweets were “visible to others” and “had the purpose of educating the public and creating sympathy and support for hourly workers in general and Chipotle’s workers in specific.” The ALJ found further that the tweets did not relate to “purely individual concerns,” but rather “issues common to many of Chipotle’s hourly workers nationwide, and certainly to those at the Havertown restaurant.”
It’s certainly a fine line between an employer protecting its reputation from derogatory (and often skewed) employee opinion – as of course the employer is not likely to tweet in response – and respecting an employee’s right to say it. The message from the NLRB is clear though – an employee’s gripes about work conditions which may be common to other employees are likely protected regardless of whether any other employee joins the conversation. This does not mean that the employer is totally powerless. Social media communication which is harassing, threatening to the employer or others, or violates law is not protected. When employers take action against an employee, though, for social media content, it is wise to carefully document the lawful reason and reference an established social media policy in order to protect against unfair labor practices and other claims.
