What you must know about employees’ online criticism of your company

A Chipotle employee posted negative tweets about workplace issues, and a judge ruled that the restaurant chain had no right to ask for their removal. Find out why.

Folks, it’s been a crappy 12 months for Chipotle.

Last year, Chipotle’s national social media strategist saw a series of tweets from a Chipotle employee working just outside Philadelphia.

The tweets had a common theme—working conditions.

One tweet included a news article concerning hourly workers’ having to work on snow days when certain other workers were off and public transportation was shut down. His tweet addressed Chris Arnold, the communications director for Chipotle, stating: “Snow day for ‘top performers’ Chris Arnold?”

In the other tweets, Kennedy replied to tweets posted by customers. In response to a customer who tweeted “Free chipotle is the best thanks,” Kennedy tweeted “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” Then, replying to a tweet posted by another customer about guacamole, Kennedy wrote “it’s extra 30 not like #Qdoba, enjoy the extra $2” (referring to the fact that, unlike the restaurant chain Qdoba, Chipotle charges extra for guacamole).

The employee was asked to delete the tweets, which he did.

Can you make an employee delete work-related tweets?

Recently, a National Labor Relations Board administrative law judge (in this opinion) concluded that the answer was a resounding “no.” That’s because, even though the employee was acting alone, the issues raised in his tweets also pertained to other co-workers.

Section 7 of the National Labor Relations Act protects employees’ rights to engage in concerted activities for the purpose of mutual aid or protection. Kennedy’s tweets concerned wages and working conditions—including that many were required to work on snow days. Wages and working conditions are matters protected by the law. The issues raised in Kennedy’s tweets are not purely individual concerns, pertaining only to Kennedy.

He was not seeking a pay raise for himself, nor requesting that he be excused from work when it snows heavily. Receiving low hourly wages and being required to report to work despite heavy snow are issues common to many of Chipotle’s hourly workers nationwide, and certainly to those at the Havertown restaurant.

That Kennedy did not consult with co-workers before posting these tweets does not make them individual concerns. It is not necessary that two or more individuals act together in order for the activity to be concerted. Concerted activities include any individual activity in which “individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.”

Therefore, because the employee intended his tweets as “support for hourly workers in general and Chipotle’s workers in specific,” his tweets constitute protected concerted activity.

How can employers avoid this problem?

Employees are going to talk about work—you can count on it—and a blanket ban on social media discussions about the workplace would violate the National Labor Relations Act.

You can—and should—encourage your employees to address work issues directly with co-workers, supervisors, HR officers and other decision makers.

In most situations, this direct communication is a more effective way to address workplace issues and to resolve problems than venting on social media.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

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