In light of social media’s ever-growing societal presence, including, but far from limited to, Facebook, Twitter, and Instagram, it is common for employers to enact social media policies establishing a code of conduct governing their employees’ online social media presence. When drafting such policies, employers must be careful to avoid running afoul of the National Labor Relations Act (the “Act ”), which applies to most private sector employers, regardless of whether the employer has a unionized workforce.
In a recent decision by the National Labor Relations Board (the “Board”), two sections of the popular restaurant Chipotle’s former social media policy were invalidated. See Chipotle Services LLC and Pennsylvania Workers Organizing Committee. The two provisions in question read:
- “If you aren’t careful and don’t use your head, your online activity can also damage Chipotle or spread incomplete, confidential, or inaccurate information.”
- “You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.”
The Board invalidated provision (1) above of Chipotle’s social media policy because the policy failed to define what it considered to be “confidential” information. Specifically, while Chipotle had a valid interest in protecting its private information, it had an obligation to define what information was “confidential” for purposes of the policy. An outright ban on postings about “confidential” information could plausibly interfere with an employee’s rights under the Act, including engaging in concerted activities for mutual aid or protection.
Regarding provision (2) above, the Board held that Chipotle could not prohibit postings that are merely false, misleading, inaccurate and incomplete statements; instead, it could only prohibit postings made with malicious intent (i.e., the employee knew the statement to be false or made the statement with reckless disregard for its truth or falsity). The Board also found that a ban on “disparaging” statements was invalid as being overbroad because it could plausibly encompass statements protected by the Act, such as statements critical of supervisors or managers. Notably, the Board upheld the policy’s prohibitions on “harassing or discriminatory” statements, citing prior precedent for the same.
In light of the Board’s decision in this case, employers must take great care in drafting social media policies that do not unlawfully restrict their employees’ rights under the Act. If you would like assistance with drafting or revising a social media policy, please contact a member of the Labor/Employment Group.