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Legal Report July 2016

U.S. Judicial Decisions

Social media. Chipotle maintained an illegal social media code of conduct and used it to improperly force an employee to delete certain tweets from his Twitter account, a National Labor Relations Board (NLRB) judge has ruled.

James Kennedy was responsible for food preparation and serving food to customers, among other tasks, at Chipotle in Havertown, Pennsylvania. In January 2015, Chipotle National Social Media Strategist Shannon Kyllo saw tweets Kennedy had posted about working conditions for Chipotle's employees.

One of Kennedy's tweets included a news article about how hourly work­ers have to work on snow days when other workers are off and public transportation is not operational. In other tweets, Kennedy replied to tweets posted by customers.

"In response to a customer who tweeted 'Free chipotle is the best thanks,' Kennedy tweeted 'nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?'" according to court documents.

Kyllo made Kennedy's area manager aware of his Twitter activity, and asked that he have Kennedy delete the tweets and discuss Chipotle's social media code of conduct with him.

The social media code of conduct outlined that Chipotle's social media team is solely responsible for the company's social media activity and that it will take "all steps to stop unlawful and unethical acts and behavior and may take disciplinary action, up to and including termination, against you if you violate this code or any other company policy," according to court documents.

The policy also included a variety of requirements, including keeping confidential information confidential and prohibiting photos or videos of nonpublic areas of Chipotle restaurants online.

"You may not make disparaging, false, misleading, harassing, or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors," the policy said. "You alone are personally responsible for your online activity."

It also cautioned that "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."

After Kyllo reached out to Kennedy's Area Manager Thomas Clark, Clark and General Manager Jennifer Cruz met with Kennedy. During the meeting, Kennedy confirmed that he was familiar with Chipotle's social media policy and agreed to delete the tweets at issue.

Kennedy was fired a week after delet­ing the tweets, and the Pennsylvania Workers Organizing Committee (Kennedy's union) filed suit on his behalf. The union charged that Chipotle maintained an unlawful social media code of conduct, directed Kennedy to delete certain tweets, and prohibited him from engag­ing in protected concerted activity, among other charges.

The court ruled in the union's favor, finding that Chipotle's social media code of conduct could be read to prohibit lawful activity and could chill employees in the exercise of their rights.

"An employer may not prohibit employee postings that are merely false or misleading," the NLRB judge explained. "Rather, in order to lose the act's protection, more than a false or misleading statement by the employee is required; it must be shown that the employee had a malicious motive…. Statements are made with malicious motive if they are made with knowledge of their falsity or with reckless disregard for their truth or falsity."

The judge also took issue with Chipotle's policy of prohibiting disclosing confidential information, as confidential is not defined, leaving it subject to interpretation, "which could easily lead employees to construe it as restricting their Section 7 rights."

Additionally, the judge said Chipotle could not prohibit "disparaging," a synonym for derogatory, statements on social media because the NLRB has found rules prohibiting derogatory statements to be unlawful.

Under the ruling, Chipotle was required to offer Kennedy reemployment and award him backpay with interest. The judge also ordered Chipotle to post at nine locations that it cannot direct em­ployees to delete social media postings about their wages or conditions of employment, or prohibit them from posting on social media about these issues in the first place. (Chipotle Services LLC and Pennsylvania Workers Organizing Committee, National Labor Relations Board Division of Judges, No. 04-CA-147314, 04-CA-149551, 2016)

Excessive force. A police officer does not qualify for immunity protection for repeatedly tasing a man who was on the ground and was not attempting to flee, a federal appeals court ruled.

Brian Yates, a first sergeant and Iraq War veteran, was driving on a highway in North Charleston, South Carolina, in December 2008. His mother and brother were in a separate vehicle following behind him.

While driving, Yates passed two police cruisers. One of the police cruisers—driven by Officer Christopher Terry—pulled out and began to follow Yates. Terry eventually activated the cruiser's lights and pulled Yates over at a gas station, where he approached Yates' vehicle and requested his driver's license.

Yates said he did not have his license, but that he did have military identification. Terry then opened the car's door and forced Yates out of the vehicle. At this time, Yates' mother and brother arrived at the gas station.

Terry then ordered Yates to place his hands on the car, and Yates complied. Terry then informed Yates that he was under arrest, Yates asked why, and Terry did not provide an explanation.

Yates then turned his head to the left—while his hands remained on top of the car—and Terry deployed his Taser in "probe mode." Yates fell to the ground and Terry tased him a second time.

After being tased again, Yates told his brother to call his commanding officer and reached for his cell phone, which was clipped to his waist. Terry then tased Yates a third time, causing Yates' mother to pass out.

Other officers then arrived on the scene, Yates was placed in handcuffs, and his vehicle was searched. He was charged with violations of excessive noise and failure to carry a license as well as disorderly conduct. All of these charges were later dismissed.

In July 2011, Yates filed suit against Terry, the city of North Charleston, the North Charleston Police Department, Chief Jon R. Zumalt, and unnamed John Does for excessive use of force and violation of his Fourth Amendment rights.

Through a series of court proceedings, the case reached the Fourth Circuit Court of Appeals, where Terry argued that qualified immunity shielded him from liability for civil damages. Qualified immunity "shields government officials from liability for civil damages, provided that their conduct does not violate clearly established statutory or constitutional rights within the knowledge of a reasonable person," according to court documents.

However, the court found that Terry's use of force during a routine traffic stop of a nonviolent offender was unconstitutionally excessive and that he could not invoke qualified immunity.

The court explained that in 2008—when the incident occurred—it was clearly established that a police officer could not use unnecessary, gratuitous, or disproportionate force by repeatedly tasing a nonviolent "misdemeanant who presented no threat to the safety of the officer or the public and who was compliant and not actively resisting arrest or fleeing."

Examining the facts in the case, the court found that they "show that [Yates] was neither a dangerous felon, a flight risk, nor an immediate threat to Terry or anyone else," it explained. "Yates has thus established that Terry's use of Taser constituted excessive force in violation of Yates' Fourth Amendment rights." (Yates v. Terry, U.S. Court of Appeals for the Fourth Circuit, No. 15-1555, 2016)


Terrorism. The U.S. House of Representatives passed legislation that allows the U.S. Department of Homeland Security (DHS) to give excess nonlethal equipment and supplies to foreign governments.

Under the bill (H.R. 4314), DHS could provide these supplies if doing so furthers U.S. homeland security interests and enhances the recipient government's capacity to mitigate the threat of terrorism, infectious disease, or natural disaster; protect lawful trade and travel; or enforce intellectual property rights.

The plan would include a risk assessment of each country with the number of U.S.-bound flights that originate from that country, visa waiver program status, and the country's overall terror threat environment, among other data.

The bill was introduced by Rep. Lee Zeldin (R-NY) and has nine bipartisan cosponsors. It now moves to the Senate for consideration. 



Firearms. Mississippi Governor Phil Bryant signed into law a bill that allows churches to train members to carry firearms and act as security guards during services.

The law (formerly H.B. 786) requires churches—and other places of worship—to provide training before arming members. These individuals then are immune from civil prosecution if they use their weapons in church "if the action in question occurs during the reasonable exercise of and within the course and scope of the member's official duties as a member of the security program for the church or place of worship," according to the law.

Along with the new provisions for security at churches, the law also legalizes concealed carry in a holster without a permit and prevents state officials from enforcing any federal gun regulation that Congress does not pass. 



A federal court ordered Texas-based BNSF Railway Co. to pay $95,000 after the company violated the Americans with Disabilities Act (ADA) "on its face" when it discontinued its hiring process after Russell Holt disclosed a prior back injury. Holt re­ceived a conditional job offer for a senior patrol officer position with the company in 2011. As part of a post-offer medical process, he disclosed a 2007 back injury and a related MRI test. At BNSF's request, Holt had a physical examination, which showed no abnormalities or restrictions. But after learning about Holt's injury, BNSF's medical officer required him to provide a current MRI at his expense. Holt asked that the MRI requirement be waived, BNSF refused, and when Holt did not provide the MRI, BNSF treated it as if Holt had declined the job offer. (EEOC v. BNSF Railway Co., U.S. District Court for the Western District of Washington, No. C14-1488 MJP, 2016)

School security

Students and parents from 10 families filed a class-action lawsuit against New York City, saying the dangerous environment at public schools is depriving them of their constitu­tional right to an education. The lawsuit claims that the New York Department of Education has failed to enforce regulations aimed at addressing violence between students or between teachers and students, despite a mandate from the state legislature to do so. "The violence knows few boundaries, except that, on average, white and Asian students encounter far fewer incidents of school violence than black and Hispanic students," the lawsuit said. (John Doe and Families for Excellent Schools v. New York City Department of Education and Carmen Fariña, U.S. District Court for the Eastern District of New York, No. 16-CV-1684, 2016)

Gun control

A federal appeals court ordered a lower court to dis­miss a lawsuit challenging Colorado's gun control laws, which were approved following a 2012 shooting at a movie theater that killed 12 people. The laws ban ammuni­tion magazines with more than 15 rounds and require universal background checks for gun buyers. County sheriffs, gun shops, outfitters, and shooting ranges filed suit against Colorado Governor John Hickenlooper, claiming the laws severely restricted their rights to own and bear arms under the Second Amendment. The federal judge ruled in favor of the governor, saying the plaintiffs had not produced evidence to show that their rights to gun ownership were infringed by the laws. (Colorado Outfitters Association v. Hickenlooper, U.S. Court of Appeals for the Tenth Circuit, No. 14-1290, 2016)