Chipotle’s social media code of conduct limiting employees’ posting found unlawful

On August 18, 2016, the National Labor Relations Board (NLRB) affirmed the administrative law judge’s (ALJ) ruling that Chipotle maintained an unlawful social media code of conduct that violated the National Labor Relations Act (NLRA).

Chipotle fired an employee shortly after he tweeted several times on employees’ working conditions and wages.

Chipotle social media policy included a provision prohibiting “disparaging, false, misleading…statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.”

As the ALJ before, the NLRB found the provision unlawful: Chipotle may not prohibit employee postings that are merely false or misleading. Rather, “more than a false or misleading statement by the employee is required; it must be shown that the employee had a malicious motive”.

“Statements are made with malicious motive if they are made with knowledge of their falsity or with reckless disregard for their truth or falsity”.

The NLRB specifically requested Chipotle to cease: “Maintaining a rule entitled “Social Media Code of Conduct” that prohibits employees from posting incomplete, confidential, or inaccurate information and making disparaging, false, or misleading statements.”

Chipotle tried to argue that the social media policy was outdated and it had been replaced.

However, since the new social media policy was never provided to the employee and the supervisors relied upon the outdated policy, the NLRB adopted the ALJ’s finding that Chipotle still technically maintained the old unlawful policy.

More information on Chipotle Services LLC d/b/a Chipotle Mexican Grill, Case No. 04-CA-147314 (Aug. 18, 2016) is available here  Open PDF

For more information on social media posting contact Francesca Giannoni-Crystal

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