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Cool Question #279: Concerted Activity in 140 Figures or fewer

Cool Question #279: Concerted Activity in 140 Figures or fewer

Question: I’m a manager inside a medium-sized store which has locations and employees in 16 states. The organization keeps a social networking policy, that was lately updated. A week ago, I observed that our employees published some pretty nasty reasons for the organization on Twitter. She accused the organization of not treating employees fairly because some needed to focus on days when others didn’t. Possibly worse, as a result of customers who have been praising their services and products, she essentially known as the organization cheap by saying it didn’t provide good pay or benefits. I haven’t observed any reaction using their company employees towards the tweets, however i am worried they’ll hurt worker morale and perhaps drive away customers. Can there be anything I ought to consider before disciplining the worker who tweeted this stuff?


Employees have more and more voiced concerns regarding employment on social networking, frequently including specific statements regarding their employers. For instance, as formerly discussed about this blog, an employee’s Facebook publish associated with wages or working conditions, coupled with other employees’ Facebook comments or “likes” of this publish, can constitute protected concerted activity underneath the National Labor Relations Act (the NLRA). Now, the nation’s Labor Relations Board (NLRB) went a step further, discovering that an employee’s tweets regarding wages and dealing conditions were protected activity even with no response from the coworker. See Chipotle Servs. LLC, N.L.R.B. Situation No. 04-CA-147314 (Made the decision March 14, 2016).

In Chipotle, an worker from the Chipotle Mexican Grill situated in Havertown, Pennsylvania, required to Twitter to go over various concerns he’d together with his employer. In a single publish, the worker voiced worry about getting to operate on the snow day when certain anybody else were off and public transit was shut lower. Later, as a result of a person who tweeted “Free chipotle is the greatest thanks,” the worker tweeted “nothing is free of charge, only cheap #labor. Crew people only make $8.50hr just how much is the fact that steak bowl really?” Chipotle’s national social networking strategist subsequently contacted the neighborhood manager for that Havertown location, requesting he ask the worker to delete the tweets and discuss their social networking code of conduct. Carrying out a ending up in the neighborhood manager, the worker decided to take away the tweets.

Section 7 from the NLRA guarantees employees the authority to “self-organization, to create, join, or assist labor organizations. . . and to take part in other concerted activities with regards to . . . mutual aid or protection . . . .” 29 U.S.C. § 157. Section 8(a)(1) protects employees’ Section 7 legal rights by prohibiting employers from disturbing, restraining, or coercing employees within the exercise of the Section 7 legal rights. 29 U.S.C. § 158(a)(1).

The Executive Law Judge (ALJ) held the employee’s tweets constituted “concerted activity” under Section 7 since the tweets concerned “[w]ages and dealing conditions,” particularly being needed to operate on snow days and pay rates, and “[t]he issues elevated in [the employee’s] tweets aren’t purely individual concerns.” The ALJ described the tweets, while targeted at specific individuals, were “visible to others” and “had the objective of educating the general public and creating sympathy and support for hourly workers generally and Chipotle’s workers in specific.” They were not tweets associated with “purely individual concerns,” but instead “issues present with a lot of Chipotle’s hourly workers nationwide, and definitely to individuals in the Havertown restaurant.”

Unlike other cases when a social networking publish constituted concerted activity, not one other Chipotle worker expressed agreement with or else even reacted towards the original tweets within this situation. Much like a Facebook comment or “like,” a coworker might have retweeted or “liked” the employee’s tweets, demonstrating approval from the employee’s concerns or evolving the dialogue. But no Chipotle worker acted in almost any means by reaction to the employee’s tweets, apart from managers asking him to delete them.

The ALJ described that, even though the worker “did not talk to coworkers before posting these tweets” with no coworkers apparently taken care of immediately the employee’s concerns, “[i]t is not required that several individuals act together to ensure that the game to become concerted.” Concerted activity includes “individual activity where ‘individual employees aim to initiate in order to induce in order to get ready for group action, in addition to individual employees getting truly group complaints towards the attention of management.’” The forum where the activity is carried out does not matter in figuring out if the activity was for that “mutual aid or protection” of other employees. Case study views only whether there’s a hyperlink between your activity and matters in regards to the workplace or employees’ interests as employees.

The ALJ further held that Chipotle violated the NLRA by prohibiting the worker from participating in future concerted activity. Although Chipotle’s managers didn’t clearly tell the worker to not publish similar tweets later on, the ALJ discovered that their conduct implied exactly that. The neighborhood manager gave the worker a duplicate of Chipotle’s social networking policy and requested him to delete specific tweets, implying that individuals tweets contravened the insurance policy which similar content shouldn’t be published later on. Getting discovered that the deleted tweets were concerted activity, the ALJ figured that Chipotle’s managers “implicitly prohibited [the worker] from posting similar tweets later on and therefore prohibited him from participating in protected concerted activity.”

Lastly, the ALJ rapidly ignored Chipotle’s assertion the employee’s tweets were disparaging from the company’s products and business or promoted a rival. In a single of his tweets, the worker referenced Chipotle’s $2 charge for guacamole and noted that the competitor (Qdoba) didn’t charge extra for guacamole. The ALJ could not agree that the employee’s tweets lost protection underneath the NLRA, discovering that the “tweets are merely statements of fact and don’t attack the caliber of Chipotle’s food.”

This decision along with other recent NLRB guidance show an elevated-and ongoing-concentrate on protecting employees’ Section 7 legal rights in a number of contexts. Whether around the factory floor or Twitter, the NLRB will safeguard employees’ legal rights to take part in concerted activity. If the employer is thinking about a bad employment action for reasons unrelated towards the an employee’s statements, the business should make sure that it is true reasons are clearly articulated and documented, restricting potential arguments the adverse action was rather retaliation for that employee’s exercise of Section 7 protected legal rights.

A social networking policy is a great start towards restricting the opportunity of employee’s to convey non-protected statements on public sites like Facebook. Bear in mind, however, that maintaining an insurance policy that violates the NLRA may subject the business to a different claim-whether or not the policy continues to be substituted with a authorized one. In Chipotle, the social networking strategist forwarded a duplicate from the then-outdated policy, that the regional manager given to the worker when asking he delete the tweets. Although the parties agreed that Chipotle’s new policy was authorized, the ALJ held the organization maintained an illegal policy since the old policy “formed the foundation for [the social networking strategist] requesting [the neighborhood manager] to satisfy with [the worker], it had been the insurance policy provided to [the worker] at this meeting, also it was the foundation for [the neighborhood manager’s] ask that [the worker] remove his tweets.” To avert this result, the business should be careful in drafting its social networking policy to conform using the NLRA’s needs (a subject covered formerly about this blog here, here, and here) after which remain consistent with using the newest version should there be multiple.

Additionally to applying a social networking policy, a company can always do something according to other problematic content within an employee’s statement for example – revealing trade secrets, violating HIPAA rules, or harassing a friend- but employers should be certain to document what specific content forms the foundation of the employment decision. Employers might also consider offering employees alternative, private channels to voice their workplace complaints to management for example Slack or Yammer, lowering the potential that the worker will vent frustrations in additional public forums like Facebook, Twitter, or any other social networking sites.


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