Many employers believe they have unfettered rights to control their employees when it comes to social media. A Twitter or Facebook post that criticizes an employer can draw swift retribution. While employees are not able to say anything they like without consequences, there are protected topics. A social media policy that does not account for activities protected by federal law is not enforceable. An administrative judge recently ruled that the social media policy used by Chipotle was not allowed under federal law. The ruling followed several memoranda released by the National Labor Relations Board instructing employers how to avoid running afoul of the law in promoting a social media policy.
Employees have the right to discuss working conditions. That discussion can include criticism of wages, working conditions and other employment practices. The Tweet that inspired the Chipotle case specifically listed the wages earned by Chipotle employees. The Chipotle social media policy banned any social media statements that were disparaging or false. After the worker was fired, he launched a complaint with the help of the Pennsylvania Workers Organizing Committee. His complaint was upheld and the judge ordered Chipotle to pay him for lost wages.
Many violations of employment law depend on workers remaining silent. Discrimination, violations of minimum wage or overtime pay laws and safety violations are more likely to come to light when employees discuss their working conditions. Employers interested in protecting their social media image cannot violate employee rights with overbroad policies.
When an employer violates the rights of workers, social media is just one more outlet to seek justice. When workers looking to improve conditions turn to social media, employers have no right to silence them.
Source: ABC Inc., WPVI-TV Philadelphia, “Judge: Chipotle’s Social Media Policy Violates US Labor Laws,” by Associated Press, 16 March 2016