It has long been said that the pen is mightier than the sword.  Record numbers of Americans are turning to the web when they have a problem to solve.  Airline cancel a flight? Send a tweet at their customer service instantly.  Looking for an affordable drycleaner in Rittenhouse? Crowdsource a recommendation from your social media followers.  Joyce from accounting objects to your reimbursement form?  Let your Facebook friends know how much you hate both your job and Joyce’s attitude about your impromptu “team-building” pizza party.

As more and more of our lives are spent online, the Internet has become a modern day equivalent of the office water cooler.  What action, if any, may employers take to curb critical online speech by their employees?  A recent decision by the National Labor Relations Board (“NLRB”) has Pennsylvania employers wondering just that.

The decision focused on the tweets of a former employee of a Havertown, Pennsylvania Chipotle restaurant.  The employee, dissatisfied with the working conditions at his store, took to social media.  He tweeted about having to work on snowy days when transportation was troublesome, and provided other examples of how the burrito is rolled.  Chipotle managers asked the employee to stop posting the tweets, indicating they were in violation of Chipotle’s social media policy.  The employee removed the tweets, but was let go several weeks later after he circulated a petition regarding employee breaks.  At that point, the Pennsylvania Workers Organizing Committee got involved, and brought an administrative complaint on the employee’s behalf.  The case then went to a Pennsylvania administrative law judge (“ALJ”) before being reviewed by a panel of the NLRB in August.

The case was not a clear win for either Chipotle or the employee.  In favor of the employee, the ALJ found that an employer cannot prohibit an employee from social media postings that are merely false or misleading without showing that the employee had a malicious motive, and also determined that the Chipotle policy was too vague, in part because it did not define some of the words it used to describe prohibited behavior.  This oversight had the ability to lead to employee confusion. It should also be noted that a disclaimer at the bottom of the Chipotle policy indicating that it was not intended to restrict activity protected by the National Labor Relations Act (the “Act”) could not save the policy. In Chipotle’s favor, the ALJ found that prohibitions against harassing or discriminatory statements do not violate the Act.

Upon review by the NLRB, the decision was largely upheld.  It agreed that Chipotle’s social media policy was unlawful, because it could chill employees from exercising their collective bargaining rights.  Further, language in the policy prohibiting employees from disseminating “incomplete, confidential, or inaccurate information,” as well as language prohibiting an employee from making “disparaging, false, or misleading statements,” violated the Act. It upheld the ALJ’s finding that Chipotle had to acknowledge that its policy violated the Act, and offer to re-instate the employee with back pay for his activities surrounding dissemination of the petition.  However, the NLRB disagreed with the ALJ’s finding that Chipotle violated the Act by asking the employee to delete the offending tweets.  This is because the NLRB did not find that in this instance, the employee’s tweets were meant to induce other employees to organize against problematic working conditions – which are the activities protected by the Act.

So where does this mixed decision leave Pennsylvania employers?  In the coming weeks employers should:

  • Discuss with counsel what kind of social media policy would be best suited for your company.
  • If your company already has a social media policy, review the terms and language with counsel to make sure it does not prohibit protected employee speech.
  • Clearly identify who is responsible for monitoring your company’s social media pages, and train these individuals on any changes to the policy.
  • Make sure there is a chain of command for responding to employee as well as customer complaints received via social media.
  • Communicate with your employees about your social media policy, and provide a clear system for internally reporting employee grievances.
  • Respond to employee concerns promptly, and work with counsel to clearly communicate any steps that have been taken to investigate employee concerns as well as the result of that investigation.

 

The bottom line is employers cannot always stop an employee from posting about the company online unless the statement is clearly malicious or libelous. However, with a little diligence on the employer’s end, it can be made less likely that an employee beef will turn into online buzz.