facebook phoneLet’s go back to happier times … for Pittsburgh Steelers fans, that is. On January 15, 2017, the Steelers won the AFC Divisional playoff, moving the team to the AFC Championship game against the New England Patriots the following Sunday. (Cue the “Boos”).  The players were elated.  The post-game speech in the locker room from Coach Mike Tomlin was rousing, sprinkled with some “colorful” comments about the Patriots. He also directed the players to keep a “low profile” and their mouths shut, and to focus on preparing for the next game.  An unidentified person added, “Keep cool on social media – this is about us, nobody else.”

So how do I know about this? Steelers Wide Receiver Antonio Brown captured it all on Facebook Live as the events occurred from the locker room. Now for the technologically challenged, Facebook Live is a live streaming app that allows the user to broadcast audio and video of a live event; essentially a personal television channel.  While many players knew that Brown was live streaming and performed for the “camera” (i.e., Brown’s cell phone), others clearly did not (that perhaps explains, the one player seen on video without a towel).  Most importantly, Coach Tomlin did not know that Brown was broadcasting what he thought was a “team only” event.  Brown’s video had 1.1 million views and 20,000 shares.

What happened next? Lots and lots of media coverage, Coach Tomlin criticized Brown as selfish and inconsiderate, Brown apologized (on Facebook Live and Twitter, of course), and the Steelers fined Brown $10,000 for violating team policy. The NFL is also investigating Brown for possible violation of the league’s social media policy, which could lead to another fine.  (Per the policy, players are prohibited from post-game social media use until the locker room is open to the news media and the players fulfilled their obligations for media interviews.)

Could this happen in your workplace? Yes … with the exception of the $10,000 fine and hopefully the media coverage. There are now a seemingly endless number of live streaming apps for mobile devices – Facebook Live, Periscope, Livestream, Streamup, and Kanvas, just to name a few.  These apps have more users and more viewtime (by non-live streamers like me) every day.   So, chances are that your employees have already live streamed at the workplace.  If not, they will be soon.

What to do? Update your company’s policy to specifically identify live streaming as a form of social media use subject to the social media policy.   As with other forms of social media (Facebook, Instagram, LinkedIn, and the like), you can prohibit live streaming during an employee’s work time, but you cannot prohibit all live streaming in the workplace, such as during a meal break or in the parking lot.

It is important to have a carefully crafted social media policy.   As we have discussed in prior posts and seminars, the National Labor Relations Board (NLRB) has aggressively pursued employer social media policies, striking down many seemingly logical provisions as overbroad in that they may “chill” employees’ rights under Section 7 of the National Labor Relations Act (NLRA). As you update your policy to address live streaming, make sure to consult with your trusted employment counsel for guidance on the latest NLRB actions on social media use in the workplace.

On that front, change may be coming to the NLRB. On January 23, 2017, President Trump appointed Philip Miscimarra, a Republican and former employment management-side lawyer, as Acting Chairman of the NLRB.  Miscimarra has been in the minority on the NLRB since his appointment in 2013 and authored many dissents, asserting pro-employer positions, in his almost 4 years on the Board.  And as President Trump fills the two vacant seats on the Board, don’t be surprised to see some reversals on the NLRB’s social media pronouncements.