NLRB Rules Against Chipotle

In yet another case of a corporate social media policy found to have violated employees’ rights to engage in protected concerted activity, an administrative law judge of the National Labor Relations Board has ordered Chipotle Services LLC to rehire former employee James Kennedy, pay him back wages and post signs in its workplaces notifying employees that its former social media policies violated labor law.

Kennedy, who worked at a Chipotle restaurant in the Philadelphia suburb of Havertown, Pa., found himself under management’s spotlight after he replied to a customer who tweeted “Free chipotle is the best thanks” with “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?”

After viewing the tweet, Chipotle national social media strategist Shannon Kyllo alerted regional manager Thomas Clark, who oversaw the location where Kennedy worked. Clark subsequently asked Kennedy to review Chipotle’s social media policy and delete the tweet, which he did.

Kennedy was later fired for what his supervisor, Jennifer Cruz, said was insubordination during a meeting at which he was asked to stop collecting signatures on a petition that addressed allegedly poor working conditions at Chipotle, including a lack of adequate meal and break times. Cruz later testified at the board proceedings that she feared for her safety during the meeting because Kennedy (an Army veteran who’d served three tours of combat duty) raised his voice and she feared he would become violent due to his diagnosed post-traumatic stress disorder.

Administrative Law Judge Susan A. Flynn found in her ruling that the corporate social media policy Kennedy had been asked to review was outdated at the time, as Chipotle had revised its policy to better comply with the National Labor Relations Act, which forbids employers from interfering with employees’ rights to engage in protected concerted activity. However, Chipotle could still be found liable for violations under the old policy, as that policy was the one referred to by Clark, the regional manager.

“I find that Clark’s implicit direction not to post tweets concerning wages or working conditions constitutes a violation of [the NLRA],” said Judge Flynn, reports Law360.

The judge also concluded that Cruz violated Kennedy’s rights when she fired him. Cruz’s fear that Kennedy would lash out “was neither justified nor true, and was fabricated after the fact,” Flynn said. Kennedy was fired because he had refused to stop collecting signatures for his petition, she said.

Kennedy has since found new employment working in a unionized position for American Airlines at Philadelphia International Airport and told the Philadelphia Inquirer he’s not interested in going back to work at Chipotle, although, he added, he’ll miss the free meals.

“If you want to tweet something about your personal experience at your job, do it,” he told the Inquirer, cautioning against libel and slander. “Tweet at your bosses and your bosses’ bosses.”