October 06, 2016
Employment Law Alert
Employment Law Alert
Several of Chipotle Mexican Grill’s employment policies came under the knife recently after the national burrito chain’s response to an employee’s rogue tweets landed it in hot water with the National Labor Relations Board.
Chipotle Mexican Grill’s (“Chipotle”) response to an employee’s rogue tweets recently landed the national burrito chain in hot water with the National Labor Relations Board (“NLRB”). Significantly, it was not just Chipotle’s alleged response to this employee’s conduct that proved problematic for the restaurant. The NLRB’s General Counsel challenged a handful of Chipotle’s employment policies, the majority of which had no bearing on the issues at hand. Ultimately, the NLRB, adopting the decision of the administrative law judge in pertinent part, determined that certain provisions were unlawful, while others avoided the knife.
“If you aren’t careful and don’t use your head, your online activity can also damage Chipotle or spread incomplete, confidential[,] or inaccurate information.”
“You may not make disparaging, false, misleading, harassing[,] or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.”
Chipotle’s warning to not spread “confidential” information on social media was problematic. The NLRB deemed the undefined term to be vague and said an employee could easily interpret the policy to bar protected conduct.
Further, the NLRB also deemed the prohibition on making “disparaging, false, [or] misleading” statements “about or relating to Chipotle, our employees, suppliers, customers, competition[,] or investors” on social media unlawful. The NLRB reiterated that employers cannot prohibit employee postings that are “merely false or misleading” – that an employee’s statements had to have a malicious motive to lose the protection of the National Labor Relations Act.
The NLRB noted that Chipotle’s savings clause at the end of its social media policy – “This code does not restrict any activity that is protected or restricted by the National Labor Relations Act, whistleblower laws, or other privacy concerns” – was insufficient to cure the unlawfulness of the foregoing provisions.
The NLRB did determine that Chipotle was within its rights to prohibit “harassing or discriminatory statements.” Although Chipotle did not define these terms, the NLRB relied on previous decisions discussing similar language that it found to be lawful.
“Employees are not to solicit or be solicited during their working time anywhere on company property, nor are they to solicit during non-working time in working areas if the solicitation would be within visual or hearing range of our customers.”
The NLRB noted that it had previously held a prohibition of solicitations during non-working time to be lawful where the solicitation would interfere with sales and disrupt the business. The NLRB held that the policy went too far here because such a prohibition would encompass situations that would have no impact on the business or interrupt sales (e.g., if a customer saw employees engaged in solicitation in the parking lot, there would be no impact on the business, but that activity would be barred under the rule).
“The improper use of Chipotle’s name, trademarks, or other intellectual property is prohibited.”
The NLRB did not find the prohibition of the commercial use of Chipotle’s logo or trademark to be an unreasonable restriction, but did find the bar on using Chipotle’s name to be a different story. The NLRB found that employees would reasonably interpret any non-work-related use of Chipotle’s name to be improper under the broad policy, and therefore the NLRB determined that this policy violated the National Labor Relations Act.
“As an aspect of good judgment and adherence to this policy, it is always appropriate to raise questions and issues, even if they are difficult. Likewise, avoid exaggeration, colorful language, guesswork, and derogatory characterizations of people and their motives. Whether in your everyday work conversations, in your exchange of e-mail, or otherwise, your communications should be thoughtful and ethical. Think before you speak and write. Be clear and objective.”
The NLRB found the portions of this policy prohibiting “exaggeration, guesswork, and derogatory characterizations of people” to be unlawful, but held that Chipotle had the right to prohibit “colorful language” because the NLRB noted that the term encompasses language that is considered to be vulgar, rude, or offensive. The NLRB has previously determined that employers may prohibit the use of offensive, demeaning, abusive, or similar language.
“While any political or religious affiliation you may have is up to you, any activity in those areas needs to remain outside of the work environment. It is said that to avoid arguments, one should never discuss politics or religion in public – and in this case at work … It is strictly prohibited to use Chipotle’s name, funds, assets, or property for political or religious purposes or endorsement, whether directly or indirectly.”
The NLRB commented that the exercise of Section 7 rights often involves political activity. The NLRB held that the prohibition on discussing politics in the workplace would prevent employees from engaging in a wide variety of protected activities, including discussing obvious topics such as legislation aimed at improving employee working conditions, candidates’ positions on work-related matters (including the federal minimum wage), right-to-work legislation, and the benefits of unionization, to name a few. Therefore, the prohibition against discussing politics in the workplace violated the Act.
While the NLRB noted Chipotle’s interest in protecting its name from being used improperly or fraudulently in the political arena, the NLRB held that blanket prohibition against using the Chipotle name for political purposes was simply too restrictive. For example, the “Fight for 15” movement could reasonably interpret this rule as prohibiting them from carrying signs identifying Chipotle as the employer of some of its members.
Some of these conclusions might be difficult to swallow for employers, but the Chipotle decision, along with prior decisions about employer policies, provides important guidance.
Given this decision, it might be time for employers to review their own employee handbooks – whether it is just a handful of policies or the whole enchilada.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.