#Concerted Activity in 140 Characters or Less
Employees have increasingly voiced concerns on social media regarding their employment, often including specific statements about their employers. As previously discussed on this blog, an employee’s Facebook post related to wages or working conditions, combined with other employees’ Facebook comments or “likes” of that post, can constitute protected concerted activity under the National Labor Relations Act (the NLRA). Now, the National Labor Relations Board (NLRB) has gone one step further, finding that an employee’s tweets regarding wages and working conditions were protected activity even without a response from a coworker. See Chipotle Servs. LLC, N.L.R.B. Case No. 04-CA-147314 (Decided Mar. 14, 2016).
In Chipotle, an employee of the Chipotle Mexican Grill in Havertown, Pennsylvania took to Twitter to discuss various issues he had with his employer. In one post, the employee voiced concern about having to work on a snow day when certain other workers were off and public transportation was shut down. Later, in response to a customer who tweeted “Free chipotle is the best thanks,” the employee tweeted “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” Chipotle’s national social media strategist subsequently contacted the regional manager for the Havertown location, requesting that he ask the employee to delete the tweets and discuss the company’s social media code of conduct. Following a meeting with the regional manager, the employee agreed to remove the tweets.
Section 7 of the NLRA guarantees employees the right to “self-organization, to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose of . . . mutual aid or protection . . . .” Section 8(a)(1) protects employees’ Section 7 rights by prohibiting employers from interfering with, restraining, or coercing employees in the exercise of their Section 7 rights.
The Administrative Law Judge (ALJ) held that the employee’s tweets constituted “concerted activity” under Section 7 because the tweets concerned “[w]ages and working conditions,” specifically being required to work on snow days and pay rates, and “[t]he issues raised in [the employee’s] tweets are not purely individual concerns.” The ALJ explained that the tweets, while directed toward specific individuals, were “visible to others” and “had the purpose of educating the public and creating sympathy and support for hourly workers in general and Chipotle’s workers in specific.” These were not tweets relating to “purely individual concerns,” but rather “issues common to many of Chipotle’s hourly workers nationwide, and certainly to those at the Havertown restaurant.”
Unlike other cases where a social media post constituted concerted activity, no other Chipotle employee expressed agreement with or otherwise even reacted to the original tweets in this case. Similar to a Facebook comment or “like,” a coworker could have retweeted or “liked” the employee’s tweets, demonstrating approval of the employee’s concerns or advancing the dialogue. But no Chipotle employee reacted in any way to the employee’s tweets, other than managers asking him to delete them.
The ALJ explained that, although the employee “did not consult with coworkers before posting these tweets” and no coworkers apparently responded to the employee’s concerns, “[i]t is not necessary that two or more individuals act together in order for the activity to be concerted.” Concerted activity includes “individual activity where ‘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.’” The forum in which the activity is undertaken is irrelevant in determining whether the activity was for the “mutual aid or protection” of other employees. The analysis considers only whether there is a link between the activity and matters concerning the workplace or employees’ interests as employees.
The ALJ further held that Chipotle violated the NLRA by prohibiting the employee from engaging in future concerted activity. Although Chipotle’s managers did not explicitly tell the employee not to post similar tweets in the future, the ALJ found that their conduct implied just that. The regional manager gave the employee a copy of Chipotle’s social media policy and asked him to delete specific tweets, implying that those tweets contravened the policy and that similar content should not be posted in the future. Having found that the deleted tweets were concerted activity, the ALJ concluded that Chipotle’s managers “implicitly prohibited [the employee] from posting similar tweets in the future and thus prohibited him from engaging in protected concerted activity.”
This decision and other recent NLRB guidance show an increased—and continuing—focus on protecting employees’ Section 7 rights in a variety of contexts. Whether on the factory floor or Twitter, the NLRB will protect employees’ rights to engage in concerted activity. If an employer is considering an adverse employment action for reasons unrelated to the an employee’s statements, the employer should ensure that its true reasons are clearly articulated and documented, limiting potential arguments that the adverse action was instead retaliation for the employee’s exercise of Section 7 protected rights.
An employer may still take action based on other problematic content in an employee’s statement, such as revealing trade secrets, violating HIPAA rules, or harassing a colleague, but employers should take care to document what specific content forms the basis of their employment decision. Employers may also consider offering employees alternative, private channels to voice their workplace complaints to management such as Slack or Yammer, reducing the potential that an employee will vent frustrations in more public forums like Facebook, Twitter, or other social media sites.
Rebecca Bernhard and Jillian Kornblatt are members of Dorsey’s Labor & Employment practice group and are regular contributors to Dorsey’s Quirky Questions blog. The Quirky Questions blog address unanticipated, real life employment questions. Steve Curry is a member of Dorsey’s Trial practice group with more publications to come both on this blog and the Quirky Questions blog.