Off-Duty Social Media Policy Mandatory For Bargaining

The Newark Police Superior Officers’ Association represents sergeants, lieutenants and captains in the Newark, New Jersey Police Department. In May 2015, the Department issued a new social media policy. The policy, which the Department described as containing “sensible guidelines,” regulated on- and off-duty social media use.

The policy cautioned that “negative references to official duties and responsibilities can be perceived as detrimental toward the Newark Police Department. Offensive, derogatory and defamatory comments shall not be used for they may interfere with court proceedings, and investigations which may question the integrity or credibility of an officer or the department. Additionally, this may also impair community relations.”

The policy prohibited officers from posting anything “related to department training, activities, details of police actions, suspects, arrestees, guilt or innocence of an arrestee, prosecutions, pending investigations, confidential information, evidence and any work-related assignments without the authorization of the Police Director.” The policy also prohibited “obscene or sexually explicit language, images, acts, statements or other forms of speech that ridicule, malign, disparage or otherwise express bias against any race, religion, ethnicity, economic status, protected class or social status of an individual.” Finally, the policy prohibited engaging “or participating in speech involving themselves or other department personnel that would reflect behavior reasonably considered to be reckless or irresponsible.”

The Association filed an unfair labor practice, alleging that the social media policy was mandatory for bargaining and could not be unilaterally implemented by the Department. The Association took the unusual step of seeking “interim relief” – an order from New Jersey’s Public Employment Relations Commission putting the policy on hold pending completion of the ULP process.

An administrative law judge sided with the Association and ordered that the policy be at least temporarily rescinded, at least to the extent it intended to regulate off-duty social medial use. The ALJ concluded that “the Personal Use of Social Media article concerns negotiable terms and conditions of employment.” Since the social media policy was unilaterally issued without negotiations while the parties were in negotiations for a successor contract, I find that the City has violated the Collective Bargaining Act and that the Personal Use of Social Media article must be rescinded pending negotiations between the parties. The unilateral issuance of the Personal Use of Social Media article has resulted in a chilling effect on negotiations. I find that the Association has a substantial likelihood of prevailing in a final Commission decision regarding the rescinding of that article.

“In deciding whether to grant interim relief, the relative hardship to the parties must be considered and a determination made that the public interest will not be injured by the interim order. I find that the relative hardship to the parties weighs in favor of the Association due to the chilling effect on negotiations. In considering the public interest, I find that it is furthered by adhering to the tenets expressed in the Act which require the parties to engage in collective negotiations prior to changing terms and conditions of employment. Adhering to the collective negotiations process results in labor stability and promotes the public interest.”

City of Newark, 42 NJPER ¶ 82 (N.J. PERC 2015).