An administrative law judge (ALJ) found the Chipotle
restaurant chain violated Section 8(a)(1) of the National Labor Relations Act
(NLRA) when it asked an employee, James Kennedy, to delete his Twitter comments
and stop circulating a petition complaining employees were not being given
their mandated breaks. (Chipotle Services LLC dba Chipotle Mexican Grill (March 14, 2016) Cases 04-CA-147314,04-CA-149551.)
In response to a customer who had tweeted “Free chipotle is
the best thanks,” Kennedy said, “nothing is free, only cheap #labor. Crew members
only make $8.50hr how much is that steak bowl worth really?” Chipotle’s
national social media strategist saw the tweet and emailed the regional manager
of the Haverford, Pennsylvania location. The manager asked Kennedy to take the
tweets down because they violated Chipotle’s “social media policy.” Kennedy complied. The ALJ found the social
media policy’s bans on spreading "incomplete, confidential, or inaccurate
information" and "making disparaging, false, or misleading statements" were
unlawful. Likewise, asking Kennedy to
delete the tweets was unlawful interference with protected activity.
When Kennedy began circulating the petition, his manager,
Jennifer Cruz, asked him to speak with her in the office. According to Cruz,
another employee expressed concern that she would be in trouble for not taking
her breaks. Cruz told Kennedy to stop circulating the petition. Kennedy
refused, saying Cruz would have to fire him to get him to stop. Cruz told him, “Okay,
just leave.” According to Cruz, she did not decide to fire Kennedy until the
next day because she was “fearful that he might hurt her” because Kennedy had
PTSD, punched boxes when breaking them down for the garbage, and he declined to
help Cruz replace a lightbulb while he was on break. The ALJ stated Cruz’s
justifications “would be laughable” “if it weren’t such blatant disability
discrimination.” The ALJ determined Chipotle fired Kennedy due to his refusal to
cease engaging in protected concerted activity.
Kennedy’s tweets and petition addressed matters of concern
for all Chipotle employees, not just himself. Under the NLRA, an employee is not limited to only seeking support from other employees, but can also seek assistance and sympathy from the public at large.
