Baseball’s Social Media Policy: Will It Pass Muster With the NLRB?

By Eric B. Meyer

The National Labor Relations Board stresses that employees must be able to discuss their jobs freely.

The National Labor Relations Board, which helps administer the provisions of the National Labor Relations Act, believes that social-media policies are overly broad if they unfairly restrict employees — union or non-union — from engaging in protected concerted activity. In simple English, if employees can’t discuss their jobs with one another, the Board has a problem.

Recently, it seems as if the Board has been on a social-media crusade. Examples of social media policy language that the Board has recently struck down, include:

A rule prohibiting employees from “[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media”;
A rule that limits employee discussion of terms and conditions of employment to discussions conducted in an “appropriate” manner, thereby implicitly prohibiting “inappropriate” discussions of terms and conditions of employment; and prohibitions on “disrespectful [online] conduct” and “inappropriate conversations.”

Baseball’s new social media policy

Craig Calcaterra at Hardball Talk posted a summary of Major League Baseball’s new social media policy. Generally, MLB encourages players to use social media to connect with fans to bring them closer to the game in a meaningful way. Still, the policy does include a set of reasonable rules — most of which I believe the Board would tolerate:

No racial, sexist, homophobic, anti-religious, etc. comments;
No harassment or threats of violence;
Nothing sexually explicit; and
Nothing otherwise illegal.

Two rules that are questionable

Two rules in the new policy caught my eye, with which I’m sure the Board would have a field day (pun, well, you know…):

A prohibition on criticizing umpires or otherwise questioning their integrity; and
A rule forbidding players from linking to any MLB website or platform from social media without permission.

Now, let’s be realistic. As to the first rule, are two professional baseball players likely to carry on a conversation on Facebook or Twitter about a bad call? Unlikely. One player? Maybe. But, that’s not protected under the National Labor Relations Act.

Why? Because there is nothing “concerted” about it. Rather, that’s an individual gripe. And an individual gripe is not protected. Still, according to the Board, the mere presence of an overly-broad rule that would chill the players’ from discussing work conditions is unlawful. Therefore, I believe that the Board would toss the umpire-criticism rule.

How can this get by the NLRB?

As to the no-linking rule, I don’t see how that would pass muster with the NLRB either. Recently, the Board’s General Counsel denounced an employer rule which prohibited use of the company’s name or service marks outside the course of business without prior approval of the law department. The General Counsel reasoned that employees have the right under the National Labor Relations Act to use their employer’s name or logo in conjunction with protected concerted activity.

So in my humble opinion, it’s not a big stretch for the Board to find that precluding players from linking to a story on MLB.com, for example, would discourage them from discussing terms and conditions of employment, collectively.

Contrary to popular belief, there must be crying in baseball — or at least the right to cry together.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.