Most employers prefer that employees not discuss their wages with people they know. They definitely prefer that employees not complain about their pay on Twitter. So when a Haverford, Pennsylvania, Chipotle employee did exactly that, the company asked him to delete the posts. Eventually, the company fired the worker. However, earlier this year an administrative law judge with the National Labor Relations Board (NLRB) ordered that the employee be rehired and held that the company’s social media policy violated the National Labor Relations Act (NLRA).

The situation began when a Chipotle crew member took to Twitter to vent about his job. In January 2015, he tweeted several times to complain about working on snow days. The employee also used Twitter to express his dissatisfaction about crew members’ hourly pay rate of $8.50. Soon after, a supervisor told the crew member that the tweets violated the company’s social media policy that prohibited employees from making disparaging and false statements about Chipotle. The employee took the posts down, but was fired several weeks later for organizing a petition claiming that workers weren’t getting their required breaks.

After the crew member was fired, the Pennsylvania Workers Organizing Committee filed an unfair labor practice charge on his behalf. The NLRB’s general counsel then filed a complaint against the company for its social media policy and for firing the employee.

In her March ruling, Administrative Law Judge Susan A. Flynn ruled against the company, claiming the employee’s rights to tweet were protected under the NLRA. In recent years, the NLRB has regularly ruled that employees have the right to complain and even insult their employers online, as long as doing so constitutes “protected activity.” When developing policies around how workers can talk about their workplaces on social media, companies must be careful that they don’t violate federal laws.

Next Steps

With these recent decisions by the NLRB, companies need to be very careful when crafting their social media policies. While companies don’t want their own employees destroying the reputation of those who sign their paychecks, in implementing policies employers should try to avoid running into trouble with the NLRB. To achieve that, companies can take several steps:

• Review current social media policies – Companies should look closely at their current social media policies in light of recent NLRB rulings. This should be done in close consultation with in-house counsel, the HR department, and outside counsel who understand the issues at stake. Social media policies should reflect that comments about wages, working conditions, and unions have different protections than other types of complaints.
• Use specific language – The NLRB has raised red flags over many social media policies for being too vague. In response, companies should try to craft policies that are as specific as possible. For example, generally banning profanity in social media posts that relate to the company may get an employer into trouble; but tying inappropriate behavior on social media posts to discriminatory or harassing behavior has been approved by the NLRB.
• Discipline carefully – Most importantly, when companies become aware of potentially problematic social media posts by employees, they should proceed very carefully with disciplinary actions. It’s important to consult with HR and attorneys to ensure that posts aren’t protected under the NLRA.

In recent years, the NLRB has reviewed dozens of social media policies, and the agency has often ruled against employers, even when workers have publicly insulted and disparaged their employers online. Companies need to understand the issues involved and working closely with experts in order to make sure their social media policies don’t result in regulatory actions.