Kennedy v. Chipotle: With A Side of Guac

By: Elana Kalkanis

This past January, Chipotle Mexican Grill filed a brief to the U.S. Court of Appeals, urging them to rule in their favor over the termination of a former employee, Army veteran, James Kennedy.[1]  Following an already tumultuous year, Chipotle once again found itself in hot water; yet this time with the National Labor Relations Board (“NLRB”).[2]  In March of 2016, the NLRB’s administrative law judge rendered a decision in favor of Kennedy, finding that Chipotle violated the National Labor Relations Act (“NLRA”) when it maintained an unlawful social media code of conduct and prohibited Kennedy from engaging in protected concerted activity.[3]  Kennedy’s complaint was ignited by his termination from the fast-food chain, after he posted negative comments to his Twitter account and which he used to criticize his former employer.[4]

The deciding factor for the court was not necessarily based on the content of Kennedy’s tweets, but rather, the context.[5]  In most of his posts, Kennedy actively replied to Chipotle’s customers and their requests for better service and cheaper food.[6]  One of his posts read, “Nothing is free, only cheap #labor. Crew members make only $8.50hr, how much is that steak bowl really?”[7]  Even though Judge Flynn recognized Kennedy’s language as an indication of his frustration with employee wages, she further acknowledged that his tweets represented issues that were common with many Chipotle employees.[8]  For this reason, and because he did not act in cahoots with any of his coworkers, Kennedy’s actions were protected under the NLRA.”[9]

Furthermore, the court found Chipotle’s Social Media Code of Conduct to be outdated and “too restrictive,” in ways which would strongly discourage employees from making appropriate statements about issues in the workplace.[10]  As a way of further protecting the rights of employees, Judge Flynn ordered Chipotle to post signs indicating that their employee policies, specifically its social media rules, were unlawful.[11]  This ruling undoubtedly sparked a movement for the rights of all employees protesting working conditions and wages, through the use of social media.[12]  Indicative of this movement was the Pennsylvania Workers Organization Committee’s “Fight for $15” campaign, which saw this decision as a major victory in their fight for healthcare and a significant raise in wages.[13]

Even though the Court of Appeals has yet to decide on Chipotle’s recent petition, this case has illustrated that the NLRB continues to working aggressively in its approach to extract unlawful employer policies.[14]  The court’s decision has not only protected the rights of Kennedy as an individual employee, but has stressed the importance of reviewing policies to many fast-food chains, in order make sure they consistently comply with the Board’s interpretation of the NLRA.[15]  As a result of their conduct, Chipotle was ordered to offer Kennedy re-employment and compensation of loss wages.[16]  Seemingly happy with the result, Kennedy stated that he was willing to accept his back wages in the form of food vouchers, as he still believes Chipotle’s food is “delicious.”[17]  Maybe guacamole can solve all of the world’s problems after all.

[1] Daniel Weissner, Chipotle Tells Fifth Circuit Worker’s Tweets Weren’t Protected, Reuters (2017),; See also Chipotle Services, L.L.C. v. NLRB, 16-60667 (2017).

[2] Amy McLaughlin, Chipotle Finds Itself In Agua Caliente With the NLRB Over Social Media Policy, 21 No. 2 Vt. Emp. L. Letter 4, (Apr. 2016).

[3] Id.

[4] Saqib Shah, Judge Find’s Chipotle’s Social Media Policy Violates Labor Laws, Digital Trends (Mar. 17, 2016),

[5] McLaughlin, supra note 2.

[6] See Cynthia Correa, Judge Rules Chipotle’s Social Media Policy Is Illegal, Eater (Mar. 17, 2016),

[7] Id.

[8] McLaughlin, supra note 2.

[9] Id.

[10] Id.

[11] Shawn Paul Wood, Judge Declares Chipotle’s Social Media Policy Violates Labor Laws, ADWEEK, http://

[12] See id.

[13] Id.; See Fight for $15, (last visited Feb 19, 2017). The “Fight for $15” started with a few hundred fast food workers in New York City, a movement striking for fifteen dollars an hour minimum wage and union rights. Now an international cause, over three-hundred cities and six continents have fought together with the common goal of compensating the people who do the “real work”, the low-wage employees.

[14] McLaughlin, supra note 2.

[15] Id.

[16] Shah, supra note 4.

[17] Wood, supra note 11.



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