You may not be aware, but the NLRB (National Labor Relations Board) has opined on numerous occasions that various common handbook provisions are unlawful under the NLRA (National Labor Relations Act) because they may have the effect of inhibiting employees from engaging in protected activities, such as discussing wages, criticizing management, publicly communicating about working conditions and discussing unionization.
The NLRB judge provided further guidance in this area in ruling in Chipotle Services LLC and Pennsylvania Worker’s Organizing Committee (Nos. 04-CA-1437314; 04-CA-149551) that Chipotle violated the NLRA by maintaining unlawful policies, improperly forcing an employee to delete social media posts critical of Chipotle, and terminating the employee for his attempts to have his co-workers sign a petition protesting Chipotle’s alleged denial of work breaks.
It appears Chipotle terminated the employee because of, and shortly after, his attempts to have his co-workers sign the petition. However, in finding various Chipotle policies related to confidentiality, social media, solicitation, ethical communications, and political activities unlawful, this decision highlights the difficulties employers face in crafting policies that balance the competing interests of an employee’s right to engage in concerted activity and, among other interests, an employer’s need to protect its confidential information and brand. It is vital that a company take every step to protect the rights of their branding, trademarks, and ownership – company’s are well within their rights to do this and should take every step to do so without infringing upon employee labor rights at the same time.
Some of the policies which the NLRB held were unlawful included:
- A social media policy that prohibited “false” and “misleading” social media posts, on the basis that “an employer may not prohibit employee postings that are merely false or misleading . . . it must be shown that the employee had a malicious motive,” as well as the provision of the policy prohibiting the disclosure of “confidential” information, where the term “confidential” was vague and undefined;
- A policy prohibiting “improper use” of Chipotle’s name or trademarks, on the basis that “employees would reasonably interpret any non-work-related use of [Chipotle’s] name to be improper”;
- An “ethical communication” policy that “prohibit[ed] exaggeration, guesswork and derogatory characterizations of people and their motives,” on the basis that it could be read to prohibit criticism of managerial decisions.
Apparently, some of these policies at issue in the case were, in fact, outdated versions, with Chipotle having replaced them with new versions at the time of the events at issue. Employers, therefore, should take care to properly distribute updated, new policies to staff and counsel them on their application.