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Monday, April 4, 2016

Careful in Terminating Employees for Protected Social Media Activities

There have been a couple of interesting news stories recently about employees being terminated for their social media activities.  The first involved the Yelp employee who posted an "open letter" on the blog "Medium" addressed to the company CEO about the hardships of living in San Francisco on her $733.24 biweekly paycheck. 

The second involved a Chipotle employee who posted the following complaint on Twitter about his salary in response to a customer tweet "Free chipotle is the best thanks":
nothing is free only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?
James Kennedy (the Chipotle tweeter) sued his employee, and the NLRB recently ruled in his favor. The administrative law judge found Chipotle's social media policy too broad, particularly those provisions that prohibited  making disparaging statements about his employer. However, the judge upheld policy provisions banning harassing or discriminatory statements, finding those provisions lawful. Second, the judge found Kennedy's tweet to be protected because it discussed wages and working conditions, matters that are protected by the National Labor Relations Act. The judge concluded that Chipotle's demand that Kennedy remove his tweet and Kennedy's termination violated the NLRA. Chipotle Services LLC v. Pennsylvania Workers' Organizing Committee, et al., (NLRB, PA 2016)

Although the NLRA does not apply to local governments and their employees, there is some good guidance in this ruling on the type of provisions in social media policies that may not pass legal muster. Employers need to be cautious in disciplining employees for social media activities that could be seen as protected activities, such as the discussion of working conditions and wages, among others.

Post Authored by Julie Tappendorf


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