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Social Media and Nurses:How to Stay Connected While Staying Out of
Trouble
Sally LaJoie & Becky McCay
Oregon Nurses Association ‐ Nurse Education October 1, 2013
What is Social Media?
• First known use of the term: 2004• Definition:
Forms of electronic communication (as Web sites for social networking and micro blogging)
• Users created online communities to share: information, ideas, personal messages, and other content (as videos). Merriam‐Webster Dictionary
Social Media is EverywhereFacebook
• 1.11 billion Users
• Created in 2004
• You can find ONA on Facebook
• Reported 200 million users
• Launched 2003
• ONA also has a presence on LinkedIn
• Has 500 million registered users
• Created in 2006
• Created in 2005
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Social Media Uses• Communication; sharing information,
community or political concerns with others; and professional networking
ConsiderationsMaintain a positive professional reputation – visibility to future & current employers/colleagues
1 in 10 users, ages 16‐34 have been turned down for a new job because of photos or comments on Facebook, Twitter, Pinterest, and other social networking sites
Maintaining positive public impression of the nursing profession
Employers’ Use of Social Networking Sites:
• Promoting & gaining business opportunities
• Building & maintaining a positive reputation in community
Employer Considerations For Creating & Enforcing Policies on Social Networking:
• Maintaining positive relations between employees
• Keeping business information, trade secrets, practices confidential
• Avoiding liability (HIPAA)
Rules & Guidelines for Nurses
• Licensure / OSBN: Conduct derogatory to the standards of nursing
• Health Insurance Portability and Accountability Act (HIPAA): What Information is Protected?
• Section 7 Rights under National Labor Relations Act (NLRA) for Employees engaging in Protected Concerted Activity
• ANA Guidelines
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Conduct Derogatory to the Standards of Nursing*
• Nurses, regardless of role, whose behavior fails to conform to the legal standard and accepted standards of the nursing profession, or who may adversely affect the health, safety, and welfare of the public, may be found guilty of conduct derogatory to the standards of nursing.
*Oregon State Board of Nursing Nurse Practice Act: OAR 851‐045‐007
Derogatory Conduct • Conduct related to client safety & integrity:
– Failing to respect the dignity & rights of clients
– Failing to maintain professional boundaries with a client
• Conduct related to statute/rule violations: – Engaging in other unacceptable behavior towards or in the
presence of a client; using derogatory names or gestures or profane language.
– Violating rights of privacy, confidentiality of information, or knowledge concerning the client, unless required to disclose (or obtain) info. or unless there is “need to know.”
• Conduct related to the client’s family: – Failing to respect the rights of the client’s family
• Conduct related to co‐workers: – Violent, abusive or threatening behavior towards a co‐worker
occurring in the presence of clients or otherwise relates to the delivery of safe care to clients
HIPAAHealth Insurance Portability and Accountability Act
PHI‐ Protected Health Information
• The Privacy Rule protects "individually identifiable health information" displayed by a covered entity or its associate in all forms of media
• The Privacy Rule calls this Protected Health Information (PHI)
PHI is information, including demographic data, likening to:
• Individual’s past, present or future physical or mental health or condition
• Provision of health care to the individual
• Past, present, or future payment of health care to individual
• That identifies the individual or for which there is a reasonable basis to believe it can be used to identify the individual
PHI includes patient name,
address, birthdate, telephone
number, etc…
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Is De‐Identified Health Information Restricted?
• No. There are no restrictions on the use of de‐identified health information
• De‐identified health information neither identifies nor provides a reasonable basis to identify an individual
• 2 ways to de‐identify information: – A formal determination qualified statistician– Removal of specified patient and relative
identifiers including household members, employers
*Adequate only if the covered entity has no actual knowledge that the remaining information could be used to identify the individual
De‐Identification: Safe Harbor1. Names
2. All geographic subdivisions smaller than a State
3. All elements of dates (except year) including birth date, admission date, discharge date, date of death; & all ages over 89 and all elements of dates (including year) indicative age, except ages & elements may be aggregated into a single category “Age 90 or Older”
4. Telephone/Fax #s
5. E‐mail addresses
6. Social security or other account #s
7. Medical record or Health plan beneficiary #s
8. Certificate/License #s, Vehicle identifiers, license plate & serial #s
9. Device identifiers and serial #s or Web Universal Resource Locators/Internet Protocol (IP) address #s
10. Biometric identifiers, including finger & voice prints
11. Full face photographic images & any comparable images 45 C.F.R. § 164.514(b).
Identifiers of the individual, relatives,
employers, or household
members must be removed to achieve the “safe harbor” method of de‐identification
Reminders & Potential Risks
• A nurse who believes he has complied with the OSBN and employer’s policies could still be in violation of HIPAA due to its breadth.
• Even if a nurse is not prosecuted for HIPAA violation, OSBN rules prohibit violating state or federal law.
• Possible individual liability for civil claims for defamation, invasion of privacy, harassment.
• Potential negative effects on team based care due to comments regarding other employees
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Employer Rules / Policies & the Impact of Section 7 Rights
• Employers create policies on social networking & public information.
• Section 7, Employee Rights impact the employer’s ability to discipline employees for online activities
NLRA ‐Section 7 “Employees shall have the right to self‐organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection …”
I’m Not a Union Employer, Why Should I Care about the NLRB?
• Employers whose employees are not unionized can still run afoul of the NLRA
• The NLRA protects all employees whether unionized or not
• Specifically, the NLRA protects employees who engage in protected concerted activities
Mutual Aid or Protection
Examples of mutual aid:
• We want a raise!
• It’s hot in here, we need a fan!
• We want a lunch break!
Examples of mutual protection:
• We want better safety training!
• We want the boss to stop bullying us!
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What are Protected Concerted Activities?
• The NLRA protects employees’ rights, whether or not they are represented by a union, to engage in protected concerted activities
Protected concerted activities: • Group activities involving two or more employees
• Acting together to improve their working conditions, such as wages &benefits
Concerted Activity ‐ Examples
• 2 or more employees addressing their employer about improving their working conditions and pay
• 1 employee speaking to her employer on behalf of herself and one or more co‐workers about improving workplace conditions
• 2 or more employees discussing pay or other work‐related issues with each other
Protected Activity
• Section 7 does not protect concerted activities that are unlawful, violent, in breach of contract, or indefensible
• Employees are permitted some leeway for impulsive behavior
• Disputes over wages, hours, & working conditions are among the disputes most likely to engender ill feelings and strong responses
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Collective Action is Required
• As with other collective action, the social media activity must involve a collective concern‐‐Not an individual complaint
• The social media communication is engaged in with or on the authority of other employees, & not solely by or on behalf of the employee himself ‐‐Not “merely griping”
Example: Hispanics United of Buffalo
• Case arose in non‐union workplace
• Employees posted angry comments on Facebook about domestic violence advocate who openly criticized the work of the other employees
• 6 employees posted angry comments about the domestic violence advocate’s criticisms
• The advocate complained to the employer that she was the victim of harassment and cyber‐bullying and 5 of the 6 employees were fired.
TEST!• Was activity of the 5 employees concerted?
• Was activity protected?
• Did their angry comments otherwise render it unprotected?
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Hispanics United of Buffalo
Basis of ruling: • NLRA protects non‐union (as well as unionized)
employees’ right to discuss working conditions • The discharged employees . . . were taking the
first steps towards group action to defend themselves against the accusations they could reasonably believe the advocate was going to make to management
• The employees had not forfeited the protection of the Act in that their comments, despite some profanity, were not so opprobrious as to render them unprotected.
Ruling: Employer committed unfair labor practices (ULPs) by firing 5 employees. Employer ordered to reinstate them with back pay, interest & benefits.
Protected Concerted Activity in the Social Media Context
• Did the communication relate to shared concerns of employees about terms and conditions of employment?
• Did the employee discuss the post with other employees?
• Did other employees respond?
• Was the employee seeking to induce or prepare for group action?
• Was the post or communication an outgrowth of the collective concerns of employee?
ANA and NCSBN guidelines for Social Media
• The ANA developed 6 principles for social networking in 2011
• These principles provide guidance to RNs & nursing students across all roles & settings
• Intended to provide guidance on using social networking media in a way that protects patients’ privacy and confidentiality and maintains the standards of professional nursing practice.
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THE 6 AN GUIDELINES1. Patient Privacy. Respect & honor patient
privacy. Know legal & ethical responsibilities
2. Observe Boundaries. Social media interactions are subject to same boundaries as those for in‐person interactions
3. Think Broadly. Harm to profession overall & career
4. Protect Yourself. Use settings & good judgment
5. Remember the Duty to Report6. Participate in creation of policies and
guidelines to educate others
Case Studies• Nurse maintained a Facebook page dedicated to
events relating to a specific piece of hospital equipment on a neurological floor (a chair for comatose patients).
• Nurse posted a photo that included part of a patient’s leg.
Nurse who posted the photo was terminated, and reported to the Board, received 30 day suspension.
More Case StudiesEmployer alleged nurse took photo of patient’s open gown, and texted photo to coworkers with a message
asking “how do you like my hairy ****?”
Nurse terminated, reported to Oregon State Board of Nursing and license restrictions resulted.
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Case Studies (continued)• Nurse posted comment on Facebook about a patient’s guest/partner who was reportedly not assistive during her labor, and referred to family member in a derogatory manner.
• Other nurses on the unit read the post, and hit the “like” option.
All nurses were reported to Board.None were disciplined but all received warnings.
Employer issued discipline for violation of its policies.
Case Study: Fun @ work• Nurse reviewed employer’s policies and
believed she understood rules and obligations. She created video of unit with a soundtrack, and photos of staff having fun during their shifts, with a positive and inspirational tone.
• No patients were included in images, employer was not named, employee badges were “blurred” but corporate colors were vaguely visible. This was posted on YouTube but removed immediately after she learned of employer concerns.
Nurse received discipline for violating employer’s policy on social media due to potential for identification of
badges/unit, no report made to Board.
Case Study: Support Nice Patient!
• Nurse posted positive information on Facebook about a patient’s business to support them and help to drive more business.
• Nurse provided the name of the business.
Employer disciplined nurse for violating policy, believed patient could be identified from posting.
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Case Study: Vote No on Contract!
• Member of bargaining team at a small hospital on the coast posted a comment on Facebook recommending a “no” vote on an upcoming contract ratification vote (after team agreed to recommend “yes” vote).
• Employer contacted NLRB next day and an Unfair Labor Practice (ULP) Claim ensured.
Association settled ULP claim, agreed this violated National Labor Relations Act.
Best Practices• Most have options that will allow you to prevent anyone
other than a friend or friend of friend from viewing your info. To learn how, visit the help links, or just Google “privacy settings [insert social networking site name],” which will help you keep information secure. Note: These change frequently so set a calendar reminder to review the policies & update your settings every 3‐6 months.
Monitor your online information and be diligent about protecting your privacy and reputation: Remember that friends may post photos or information about you that is visible. You can adjust your settings to prevent this from occurring, or notify friends that you do not want your photo posted.
• No matter how your privacy settings are set, many times your comments on Facebook posts are visible. Recent report: 25% of Facebook users don't bother with any kind of privacy control while an average Facebook user has 130 friends.
Create your own specialized
privacy settings.
Monitor
Comments are more visible than
you expect.
More Best Practices• Don’t mention patients – ever. Hypothetically or in
any other manner, even if intended to be positive informative or educational.
• Don’t mention a patient, even if you believe it is anonymous, as it could be identified and if not violation of rules, could violate HIPAA.
• Don’t post any patient information.
• Don’t post any photographs/images of a patient.
• Be cautious about contact with a current or former patient.
• Consider how tone often does not transmit well in writing.
• Don’t post anything if you’re angry or impaired.
• Don’t friend co‐workers if you include anything personal on the site.
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Questions?
• NCSBN White Paper on Social Media: https://www.ncsbn.org/Social_Media.pdf National Labor Relations Board Rulings: visit www.NLRB.gov.
• The American Nurses Association fact sheet and 6 principles are available at: www.nursingworld.org.
• OSBN Disciplines issued are public information and are available at: http://www.oregon.gov/osbn/pages/index.aspx under disciplinary documents available online.
• NEW PROTECTED CONCERTED ACTIVITY WEBSITE• National Labor Relations Board launched a
webpage that describes the rights of employees to act together for their mutual aid and protection, even if they are not in a union.
• The page, at www.nlrb.gov/concerted‐ activity, tells the stories of more than a dozen recent cases involving protected concerted activity across the country.