• by Erik Sass , Staff Writer, March 17, 2016

Fast-food chain Chipotle ran afoul of federal labor laws when it fired an employee who criticized the company on Twitter, administrative law judge in Susan Flynn ruled this week. The case is another warning to companies that try to control employees’ statements on social media, which in many cases is speech protected by laws intended to stop employers from retaliating against labor organizers.

In January 2015 Havertown, PA Chipotle employee James Kennedy tweeted criticized the company for paying workers $8.50 an hour while giving away free food, implying that this was an exploitative arrangement. He later took the tweet down when a supervisor informed him that the company’s social media policy prohibited employees from making “disparaging, false” statements about it online. Several weeks later, he was fired for organizing a petition protesting workers not getting their required breaks.

The National Labor Relations Board reviewed the case and agreed that Kennedy had been treated unfairly, with his firing connected to the petition as well as his earlier statements about wages on social media. In this week’s ruling Flynn confirmed the NLRB’s finding, ordering Chipotle to offer to rehire Kennedy and pay him for lost wages.

Back in 2012 the NLRB warned employers that certain kinds of social media speech by employees are protected against retaliation or prohibition, including specific complaints about their workplace, including for example wages, hours, benefits, or other conditions. The NLRB pointed out that these cannot constrained because are part of the process by which workers collectively seek redress under the National Labor Relations Act.

By the same token, under the NLRA, if the speaker isn’t trying to arrange collective action for redress, their complaint does not rise to the level of protected workplace speech. In this regard, the NLRB looks for a “connective thread” between statements from employees which show they are discussing shared concerns and at least considering collective action; critical speech that doesn’t meet this qualifications is considered “griping” and is not protected.