Tuesday, March 22, 2016

Media Policies Can't Impede Protected Activity

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.