Burrito PlateOn August 18, 2016, the National Labor Relations Board (NLRB) affirmed an administrative law judge’s (ALJ) March 14, 2016 ruling that Chipotle’s “Social Media Code of Conduct” violated the National Labor Relations Act (NLRA).

By way of background, Chipotle terminated associate James Kennedy in February of 2015 shortly after he made several tweets regarding employee working conditions and wages. During the same time period, Kennedy circulated a petition amongst his coworkers addressing management’s purported denial of break periods. The Pennsylvania Workers Organizing Committee subsequently filed two unfair labor practice charges against Chipotle asserting that Chipotle maintained an unlawful social media policy, enforced unlawful work rules, prohibited Kennedy from engaging in protected concerted activity, and terminated Kennedy because he engaged in protected activity.

The social media policy at issue included a provision prohibiting “disparaging, false, misleading…statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.”  Consistent with the ALJ’s ruling, the NLRB held that this language violates the NLRA because Chipotle cannot bar employees from posting false or misleading statements on social media unless the employee acts with a malicious motive. An employee acts with a malicious motive if he or she knowingly publishes false statements or publishes statements with reckless disregard for the truth. The NLRB also affirmed the ALJ’s ruling that Kennedy was terminated in violation of the NLRA.

Chipotle unsuccessfully argued that the social media policy at issue was outdated, and that a new policy went into effect on January 1, 2014. Since the new social media policy was never provided to Kennedy and Kennedy’s supervisors relied upon outdated policy, the NLRB adopted the ALJ’s finding that Chipotle still technically maintained the old policy.

This decision serves as another reminder for employers that they must review their social media policies, and, further, demonstrates the consequences when employers fail to disseminate and/or implement updated versions of its policies.

The full text of the decision can be found here.

As always, HRLegalist urges our readers to consult legal counsel if you have any questions about how this decision may impact your business.