Tag Archives: social media policy

Chipotle Decision Reminds Employers Once Again That Strict Social Media Policies Are Unlikely To Survive NLRB Scrutiny

Contributed by Steven Jados

A recent decision from a NLRB Administrative Law Judge (“ALJ”) serves as yet another reminder that most private sector employers must allow employees some leeway to make work-related complaints, especially on social media. The employer in the case, Chipotle Services LLC, operates Chipotle restaurants nationwide. As readers likely are aware, Chipotle has received a great deal of negative press in recent months, but this recent decision was unrelated to food safety or illness issues.

Instead, this case arose after Chipotle management confronted an employee who used the social networking application, Twitter, to complain of low wages and being required to work on days when heavy snow fell and public transportation was not operating.  The employee also tweeted that Chipotle, unlike its competitor, Qdoba, charged customers for guacamole.

Social MediaManagement met with the tweeting employee, handed him a copy of the company’s social media policy, and asked him to delete his tweets about Chipotle because they violated the policy.  Further showing that Chipotle cannot catch a break, the policy document that management gave the employee was not even Chipotle’s current social media policy—but that did not matter to the NLRB because Chipotle relied on the outdated policy when it asked the employee to delete his tweets.

Two particular provisions in the social media policy drew the NLRB’s ire. Those provisions prohibited:  (1) spreading “incomplete, confidential, or inaccurate information;” and (2) “making disparaging, false, misleading or discriminatory statements about or relating to Chipotle . . . .”

The ALJ concluded that prohibiting false, misleading, incomplete, or inaccurate statements was improper as prior NLRB decisions required more than a false statement for an employee to lose the protection of the National Labor Relations Act (“NLRA”).  Under existing precedent, in order to lose the protection of the NLRA, inaccurate statements must be combined with a malicious motive.

The ALJ also was troubled by the prohibition on disclosing confidential information, because the term “confidential” was not defined in the policy and, therefore (according to the ALJ) could have been broadly construed by employees to include NLRA-protected activity.  Prior NLRB decisions have struck down overly broad confidentiality provisions that could be construed to bar employees from discussing, for instance, their wage rates.  Similarly, the ALJ determined that the prohibition on “disparaging” statements was also too vague, and thus could be interpreted to bar protected activity.  Again, as NLRB precedent has shown, insulting one’s employer and supervisor often can be protected by the NLRA.

Bearing all of this in mind, it is critical that employers realize that employees do have certain rights to bite the hand that feeds them—and that efforts to enforce overly strict limitations on employee comments have the possibility to create more harm than the original comments ever could have.  In this regard, employers must also recognize that the NLRA covers most private sector employers with multiple employees, regardless of whether the employer’s employees are union members.  As such, employers must be mindful of the rights that exists under the NLRA, and should consult with experienced legal counsel when implementing and enforcing employee social media policies.

Too Little Too Late: NLRB Rejects Employer’s Attempt To Repudiate

Contributed by Beverly Alfon

In a 2-1 decision, the National Labor Relations Board (NLRB) issued a decision against an auto dealer, finding that the company violated the National Labor Relations Act (act) by implementing and maintaining: (1) a 2010 social media policy that required employees to identify themselves when posting comments about the company, its business, or a policy issue and prohibited employees from using the company’s logo in any manner; and (2)  a 2010 dress code policy that prohibited employees from wearing pins, insignia or other message clothing.  Boch Imports, Inc., 362 NLRB No. 83, 4/30/2015.  In light of the NLRB’s aimed campaign to attack what it characterizes as “overly broad” work rules, these findings are not all that surprising.  What makes this decision a brow-raiser is the fact that the NLRB rejected the company’s attempts to correct these policies – even though the company did so with the assistance and approval of the NLRB regional office that investigated the unfair labor practice charge.

Notice PostingIn 2013, the company replaced the 2010 policies with lawful language (except for the dress code provision) and distributed a new employee handbook to every employee.  The purpose was clearly to achieve compliance with Section 7 of the act.  Nonetheless, the board found violations by the company for its 2010 policies – regardless of the company’s rescission of those policies.  The board found the revised policies to be an inadequate remedy and ordered the company to post a notice to employees that enumerated the various overbroad policies and rules that were contained in the 2010 handbook.

This decision is troublesome for employers because although the board acknowledged that an employer may repudiate its unfair labor practices, it would have required the company to provide notice of the unfair labor practices to the employees, an admission of wrongdoing, even before an administrative law judge ruled on the merits of the charge.

Bottom line:  The region’s informal blessing of your attempts to correct the conduct at issue in an unfair labor practice charge, does not amount to an effective repudiation.  Before you decide to correct a policy or procedure that is the subject of an unfair labor practice charge, explore the possibility of a non-board settlement with the charging party – one that would not require a notice posting or admission of fault.

The NLRB Strikes Again-COSTCO SOCIAL MEDIA POLICY

Contributed by Julie Proscia

On September 18, 2012 a three-person NLRB panel held that Costco’s policies regarding the Internet and social media were “too broad” and could effectively stifle employees’ right to free speech under the National Labor Relations Act (NLRA). This move was an evolution of previous general counsel’s guidance and the first time that the NLRB officially held that a social media policy violated Section 8(a)(1) of the NLRA.

The “Electronic Communications and Technology Policy” in Costco’s employee handbook advised employees to, “be aware that statements posted electronically (such as to online message boards or discussion groups) that damage the company, defame any individual or damage any person’s reputation or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.” The NLRB found that this policy was too broad and prevented employees from engaging in protected discussions regarding the terms and conditions of their employment.

Not only did the NLRB strike down the social medial policy, but it also criticized and struck down four other provisions in the employee handbook. These included provisions relating to the dissemination of confidential information including prohibitions regarding discussion of seemingly confidential matters like employees contact information, FMLA leaves, ADA accommodations and workers’ compensation injuries. Like the Electronic Communications Policy the NLRB found that the provisions restricted discussions relating to terms and conditions of employment and as such was too broad.

This leaves employers in an even larger quandary trying to protect their confidential information and the reputation of the company while maintaining compliance with an ever evolving and seemingly broader definition of protected and concerted activity. It is even more important for employers to diligently update their policies and procedures to ensure that they are not the next in the social media expansion pack.

Costco Wholesale Corporation and United Food and Commercial Workers Union, Local 371, Case 34–CA–012421.

Multi-State Employers: New Laws You Should Be Aware Of!

Contributed by Paul Jaquez & Heather Bailey

Federal: Distracted Driving: Employers can now be penalized up to $11,000 when their commercial motor vehicle drivers are caught red handed using hands-free devices to dial, text, surf, etc. while driving!  Many states are following in line with similar laws.  Effective January 2013, Illinois  enacted laws with stiff fines where commercial motorists are caught texting while driving and where cell phones are used near posted construction zones – and effective immediately – no such use can occur within 500 feet of an emergency scene (i.e., taking photos).  If this applies to you, seek counsel on getting an employee cellular phone use policy in place immediately so that employees are aware (and acknowledge) you do not condone or require such behavior while driving. 

Hawaii: Hawaii now recognizes civil unions and other legal unions from other jurisdictions for purposes of EEO retroactively to January 1, 2012.

IllinoisBeginning January 2013, employees’ signed authorization for voluntary deductions can be completed electronically, and, employers cannot ask employees for their personal social networking passwords or demand any such access. 

Missouri: If you use the last four digits of your employees’ social security numbers as identification, start planning now, because as of December 31, 2015, employers will not be able to use any part of employees’ social security number for such purposes.  Additionally, effective August 28, 2012, it is no longer a “false statement” for an applicant/employee to not acknowledge or give information related to expunged criminal records.

Vermont:  Effective July 1, 2012, employers cannot 1) ask applicants about sealed or expunged criminal records; or 2) discriminate or retaliate against applicants/employees related to their credit reports or histories.

CALIFORNIA ALERT! NEW FOR 2013: Commission Sales Agreements: Put Them in Writing!

In California, if you pay your employees a commission, you must have the commission plan reduced to writing by January 1, 2013. California law AB 1396 requires all employers doing business in California to draft written contracts for employment that involves commissions as a component of compensation. Specifically, the written contracts must set forth (1) the method for computing the commission; and (2) the method for paying the commission.  It is important for an employer to be as detailed as possible, while still maintaining some flexibility. AB 1396 will require an employer to specify all components of the commission (i.e., any costs or adjusted amounts in determining the final amount).  Further, recall that under the law, a commission is due and payable after the reasonable conditions precedent of the employment agreement have been met.  Arguably, AB 1396 will provide less accommodation to an employer in calculating when a commission ultimately becomes “earned” or ascertainable – as the employer must now delineate more definitively when the employee should expect payment.

Employers must provide a signed copy of the contract to every employee covered by the commission agreement, and must also receive and retain a signed receipt from the employee that he/ she received and agreed to the commission agreement. 

Violations:

In addition to the typical wage and hour litigation that may ensue for violating an employee’s compensation payment, a violation of AB 1396 will itself result in a statutory penalty of $100 for each aggrieved employee per pay period for the initial violation and $200 for each aggrieved employee per pay period for each subsequent violation.

Steps Going Forward:

1)      Ensure that the compensation method you are utilizing is indeed a “commission” (i.e., a % of sales or profits) and not a bonus or profit-sharing structure;

2)      State what the commission is;

3)      State how the employee can earn the commission;

4)      State how the commission will be computed;

5)      State the method of how the commission will be paid; and

6)      State when the commission is considered “earned.”