Leveraging social media is critical to the success of any business today – especially for health care organizations.  Patients use social media as another source for “word of mouth” referrals – to find and comment about their experiences with doctors, clinics, and hospitals – and without a social media strategy, health care organizations will miss this key opportunity.  With opportunity, however, comes risk, as health care organizations must ensure patient privacy, manage liability relating to employee use (and misuse) of social media, and protect the online image and reputation of the organization.

With that in mind, we bring you the first installment of a new five-part series on key questions relating to social media that all health care employers should consider.  While these posts will be health care focused, the lessons can apply to businesses across all industries.

Employees engage in – and post about – all sorts of questionable activities.  And, more often than not, one of the employee’s coworkers will see the post and provide a copy to management.  When that happens, and when the post is particularly inflammatory, the knee jerk reaction may be to fire the employee for the post.  But as most savvy employers know, not all posts are created equal – some are legally protected and cannot form the basis for a termination decision.  Others are not.  As a result, employers should step back and do some analysis (and seek legal counsel) before engaging in a “Facebook firing.”

Is the post protected activity?

Some social media posts are protected by state or federal laws.  For example, under Section 7 of the National Labor Relations Act (NLRA), employees have the right to discuss the terms and conditions of their employment, and that term is interpreted extremely broadly. A couple of classic examples are an employee’s right to discuss his or her wages with other employees, and an employee’s right to criticize his or her supervisor. Additionally, here are a few examples of how employees’ rights under the NLRA play themselves out when health care employees are terminated for their social media activities:

American Medical Response

In the case that seems to have started the wave of National Labor Relations Board (NLRB) cases dealing with Facebook firings, paramedics at an emergency response company engaged in the following posts about their supervisor:

Employee: “Looks like I’m getting some time off.  Love how the company allows a 17 [AMR code for a psychiatric patient] to be a supervisor.”

Coworker: “What happened?”

Employee: “Frank being a dick.” … “Yep he’s a scumbag as usual.”

Coworker: “Chin up!”

After the employee was terminated for the posts, the employee brought an unfair labor practice charge.  The NLRB found the termination found unlawful, in part because the paramedic engaged in protected conduct by protesting a “supervisory” action.

Martin House, Inc.

After a series of cases similar to American Medical Response, the NLRB began issuing cases that appeared to place some limits on the type of posts employees could get away with – finding some social media posts were not in fact protected.  For example, in Martin House, Inc., the employee (a recovery specialist at a residential home for residents with mental health issues) posted as follows:

Employee: “Spooky is overnight, third floor, alone in a mental institution, btw Im not a client, not yet anyway.

***

Employee: “My dear client ms 1 is cracking up at my post, I don’t know if shes laughing at me, with me or at her voices, not that it matters, good to laugh.”

Here, the post was found not to be protected activity because the employee had not engaged inconcerted activity with co-workers.  While the employee engaged in conversation about the above posts with Facebook friends on her wall, these friends were not employees of Martin House.  Therefore, the NLRB found that the employee was “merely communicating with her personal friends” and found no violation.

SkinSmart Dermatology

Similarly, in SkinSmart Dermatology, an employee who essentially dared her boss to fire her, did not engage in protected activity.  In this case, the employee posted in a group chat:

Employee: My supervisors “are full of sh** … They seem to be staying away from me, you know I don’t bit my [tongue] anymore, F*** … FIRE ME … Make my day ….”

Although this group chat did involve employees of the clinic, the NLRB found the post was not protected because the employee’s post did not involve shared employee concerns over terms and conditions of employment.

Pier Sixty, LLC

Although not in the health care context, in this recent case, the NLRB appears to be veering back in the direction of finding even inflammatory posts protected.  In Pier Sixty, LLC, an employee who was upset with the way his supervisor was treating him, took a break from work and posted this:

“Bob is such a NASTY MOTHER F****R don’t know how to talk to people!!!!!! F*** is mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

Here, even though the post was filled with profanity, the National Labor Relations Board found that his post was protected under the NLRA given the “totality of the circumstances.”

Ultimately, though, when faced with a termination or discipline decision, in addition to determining whether the post is legally protected, another question you should ask is much more practical – does the post really justify discipline/termination, or should it simply be ignored?  Did the employee disclose patient protected health information or are they simply complaining about a supervisor?

Oftentimes, growing a thicker skin and letting some negative or disparaging social media posts go is the best course.  Other times, action is warranted, but it’s a good idea to step back and look at the larger context of the situation before acting.

What social media concerns does your company have?