With baseball season underway, minds have turned to “America’s Pastime.” Major League Baseball, like every employer should, has issued a social media policy. A quick review raises questions about whether portions of the policy will “strike out” if reviewed by the National Labor Relations Board (NLRB), which has been very active in reviewing employer policies and actions relating to social media use by employees. The NLRB is concerned by social media policies it views as unfairly restricting employees — including those not even working in a unionized workplace — from engaging in “protected concerted activity” as defined by Section 7 of the National Labor Relations Act (NLRA). Simply put, restricting employees from freely discussing their “conditions of work” is considered a violation of Section 7.
So, will Major League Baseball’s social media policy be “safe” at home? Let’s play umpire…
The policy includes a set of reasonable rules, such as prohibiting social media use that involves racist, sexist, homophobic, or anti-religious comments, anything sexually explicit, any harassment or threats of violence, or anything illegal. That’s a clean single. No problems there.
But, the policy goes on to include an couple of provisions the NLRB would likely call “out.”
First, the policy prohibits criticism of umpires or questioning their integrity. While I doubt two or more professional baseball players will take to social media (as opposed to the print or radio/TV media) to complain about a terrible call at home plate, the NLRB has found rules that would “chill” employees from discussing work to be overbroad and therefore unlawful under Section 7. It might be a close call, but if subjected to scrutiny, I think the NLRB will “throw out” this provision.
Second, the policy also prohibits linking to any MLB website from social media without permission. This provision is also likely to go “down on strikes.” The NLRB’s General Counsel has already cried “foul” about another employer’s rule prohibiting use of the Company’s name without prior permission, believing that employees have the right to use an employer’s name or logo as part of their concerted protected activity. The NLRB has not ruled on this, but it is likely to see this the same way its General Counsel does.
In the end, it is far less likely that MLB’s social media policy will be challenged or come under NLRB scrutiny than your company’s social media policy. Baseball players have agents, make millions and play baseball for a living. They have far less to gripe about than most employees. But this example raises an obvious question: Does your company have a current or recently updated social media policy (as it should), and will it be “safe” if challenged or reviewed by the NLRB? “All-Star” HR professionals should review their companies’ social medial policies now, before problems arise. You can “hit a home run” but making sure your social medial policy is effective and will not “strike out” with the NLRB.