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Social Media & Healthcare Employees

January 31, 2014

Doris E. Brosnan

von Briesen & Roper, s.c.

dbrosnan@vonbriesen.com

Who Has Social Network Accounts

According to Pew Research Foundation:

• 71% of online adults use Facebook

• 18% of online adults use Twitter

• 17% use Instagram

• 21% use Pinterest

• 22% use LinkedIn

Millenials• “Digital Natives”

• Enthusiastically have embraced social media.

• Personal sharing overrides their concerns for privacy.

• Experts predict that this will continue to be the case as millenials get more responsibility at work.

• 15% of internet-using teens stream video live to the internet for other people to watch

» Source: Pew Research Foundation

Social Media In Healthcare: Trends

Social Media in Healthcare• That was then:

– 2009: First live tweeting of surgery at Henry Ford Medical Center.

• This is now:– 2013: Hospitals and medical centers use over 300

YouTube channels and 500 Twitter accounts.

• Healthcare systems have moved from experimentation to strategic use of social media to build brand loyalty and attract new patients.

Current Trends• Patient communities.

– Mainline social networks (Facebook) as well as condition-specific communities.

– Brand sponsored (pharma).

– CaringBridge type sites.

• Engaging e-patients.

• Healthcare hashtags on Twitter.

Which Employees Are Talking on Social Media?

• EVERYONE.

• Supervisors and subordinates.

Still…• Healthcare employers must protect patient

privacy.

Employment Law Issues in Social Media

Social Media and Work: Landscape

Blurred Lines: How Do Employees Access Social Media?

• Variety of physical locations.– At work, at home.

– Physical location of workplace is blurring.

• Variety of times.

– On work time, off work time.

– Lines between work day and personal life is blurring.

Blurred Lines (continued)

• Variety of devices.– Smartphones, computers.

– Work-provided devices and personal devices.

– Line between work-provided and personal is blurring.

– For many workers, there is no such a thing as a communications device that is unconnected to work.

• Variety of websites/media.– Social media blurs personal and professional.

• Social media sites lead to knowledge of employee’s personal activities.

– Sick leave abuse.

– Worker’s compensation abuse.

– Allows employers to have more information to discriminate (legally or illegally).

Blurred Lines (continued)

Water Cooler• Social media is the new water cooler.

• To that end, there have been an explosion of charges and complaints against employers regarding negative job actions that have occurred as the result of speech on social media.

How Does This Impact Employers?

• Employers cannot treat all of these scenarios in the same manner.

• Policies must regulate a variety of scenarios.

• Important for employers to recognize that social media policies restrict employee speech.

National Labor Relations Act• 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 concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

American Medical Response Case• First well-publicized NLRB case on social media

issues.

• AMR fired an employee who posted negative remarks about her supervisor on her Facebook page.

• http://www.classtools.net/FB/1772-UHrjQe

AMR (continued)

• AMR had a policy against “Rude or discourteous behavior to a client or coworker.”

• AMR had a policy against inappropriate language. • AMR had a policy which prohibited employees “from

making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, coworkers or competitors.”

• Terminated employee, who was represented by a union, filed an unfair labor practice charge with the NLRB stating that interfered with her Section 7 rights.

AMR (continued)

• The case settled.

• According to the NLRB’s press release, the terms of the settlement called for the company to “revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing wages, hours and working conditions with coworkers.”

From there, the National Labor Relations Board took scores of employers to court for firing

employees based on their social media posts. Their cases included both unionized and

nonunionized workplaces.

Two Main Issues of Interest:• Was the social media posting protected

by the NLRA?

• Was the employee being unlawfully threatened, interrogated, or surveilled?

Another Healthcare Example• Martin House (July 2011). Residential facility for

homeless with mental health issues.• http://www.classtools.net/FB/1928-ySUN6r• None of the commenting “Friends” were

coworkers.• Charging party was not “Friends” with any

coworkers.• BUT: Charging party was “Friends” with one of

the employer’s former clients.

Martin House (continued)

• Employer wrote in the termination letter: “We are invested in protecting people we serve from stigma” and it was not “recovery oriented” to use the clients’ illnesses for her personal amusement.

• Letter also cited confidentiality concerns.

• Letter also cited that posts were during work time.

Martin House (continued)

• NRLB said employer did not violate Charging Party’s rights.

• Board’s test for concerned activity is whether the activity “is engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.”

NLRB and Employer Policies• Costco Wholesale Corp., 358 NLRB 106 (2012).

• Policies prohibited employees from disclosing Costco “confidential information” including payroll, employee contact information, and “all information regarding Costco employees.”

• “Employees should be aware that statements posted electronically (such as online message boards or discussion groups) that damage the Company, defame any individual or damage any person’s reputation…may be subject to discipline, up to and including termination…”

Costco (continued)

• NLRB said policy violated NLRA.

• “Damage the company, defame any individual or damage any person’s reputation” interferes with concerted communications protesting the company’s treatment of employees.

Impermissible Policies• Blanket prohibitions.

– “No disparaging comments about the company through social media”

– “Do not release confidential information about the company, its employees, or its clients”

– “Only discuss on a need-to-know basis”

Impermissible Policies (continued)

• Accuracy of communications

– “Comments about the company must be accurate and not misleading, even if based on your personal view”

• Guidance from employer

– “When in doubt, do not post on social media. Checking with the company is a good idea.”

More Clarification from NLRB

• Karl Knauz Motors, 358 NLRB 164 (2012).

• Salesperson at a BMW dealership made two posts about his work.

– Thought the hot dogs and chips provided at a sales event were tacky given high-end clientele.

– Mocked an accident that had occurred at the dealership.

Karl Knauz Motors, Inc.

• The NLRB found that the first post was protected as concerted employee activity, but the employer did not fire him for that.

• The NLRB found that the second comment was not protected because it did not relate to any employees’ terms and conditions of employment.

NLRA and Facebook• Concerted activity = collective or group

activity.

• Mutual aid or protection regarding wages, hours, working conditions, benefits, terms or conditions of employment.

Other Considerations with Firings• When it comes to physicians, remember

the employment contract.

• Reasonable legal minds debate about whether inappropriate comments on social media fit the definitions of “cause” in the termination sections of employment agreements.

Be Careful of Overzealous Surveillance

• Do not request that employees let you see a Facebook posting or Instagram picture.

• Do not friend your employees.

• Public information is public – fair game (within the limits set forth herein!).

Protected Health Information• PHI is sacrosanct.

• PHI = individually identifiable health information.

• Is there enough information for people in the community to figure out the patient?

• Use your compliance experts to determine whether there has been a breach.

Other Areas• Employee posting on Facebook or Twitter or

Instagram about being on vacation, playing in a band, etc., while on sick leave.

• Be careful of being overzealous: do not ask employees to show you the Facebook page – let them come to you voluntarily.

• Be careful about FMLA.

People Fired for Twitter• Connor Riley tweeted: “Cisco just offered me a job! Now I

have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.”

• Shortly after that, there was a reply from Cisco employee Tim Levad: “Who is the hiring manager? I’m sure they would love to know that you will hate the work. We here at Cisco are versed in the Web.”

• Read more: http://www.businessinsider.com/twitter-fired-2011-5?op=1#ixzz2qbQ9mQy2

Other Real Life Examples1. MD Anderson: Monitors employee usage of the

internet and disciplines postings of “I don’t feel like going to work”.

2. St. Mary Medical Center in Los Angeles: Fired employees who took a picture of a patient who had been brutally stabbed in neck and posted on Facebook.

3. New York EMT fired for posting pictures of a murder victim.

Other Real Life Examples4. Mayo Clinic: Policy reminds people that they are

representing the hospital even when off hours.

5. University of Iowa Hospitals prevents access at clinic settings to websites which are not appropriate in the patient setting. This includes social networking sites, gaming sites and malicious sites which try to infect your computer. In part in response to patient complaints.

6. Beth Israel Hospital: Placing restrictions on social media isn’t the answer, people will just use handheld devices or other ways to get to the web.

Other Employment Law Considerations

• Common law right of privacy.

• Wisconsin Statute 995.50 – establishes a right of privacy (not limited to employment).

• Retaliation claims.– Former underwriter of JP Morgan accused company

of failing to pay overtime on Facebook.

– Unfriending an employee after she files charge of discrimination?

Using Social Media for Hiring

http://bit.ly/uYScoE

2012 Study by Careerbuilder• 37% of employers surveyed screen potential hires by

using social media.

• 34% found information that caused them not to hire a particular candidate:

– Provocative pictures.

– Information about the candidate drinking or drugging.

– Poor communication skills.

– Bad mouthing previous employer.

– Lying about qualifications.

Extreme Examples• Some employers have taken the

controversial step of requiring applicants to provide login and password information during application process. (Maryland Public Safety)

• ACLU put a stop to that.

• Subject of various state legislative efforts.

Pitfalls of Social Media Sites in Hiring

• They provide information not provided during a “normal” application process:

– Race, national origin, immigration status age, familial status, disability status, pregnancy, religion, sexual orientation, etc.

• Be careful not to violate discrimination laws.

Best Practices

Have a Social Media Policy

• Have a policy for your public relations department and one for employees.

• Electronic communications policy and social media policy (governs behavior on legitimate work-related communications) should be intertwined.

• Train people on the policy.

Social Media Policy (continued)

• Clearly communicate that all systems are owned by the company.

• Clearly communicate that all systems provided are for business use and not personal use.

• Employees should be warned that employer owns their device and all communications and that they have no expectation of privacy on those employer provided devices.

• Communicate notice of intent to monitor and the frequency and purpose of monitoring.

• Assure legal compliance with all monitoring activities.

• Warn employees of consequences of violating policy (discipline and discharge).

• Connect social media policy to work rules.

Social Media Policy (continued)

Clearly describe prohibited activities without being overbroad to chill employee speech:

– Disseminating Confidential Information

– Engaging in actions or downloading materials that are vulgar, harassing, threatening, intimidating.

– Breaching patient confidentiality.

Social Media Policy (continued)

Protected Health Information

• PHI is sacrosanct.

• Disclosures of PHI will lead to discipline or discharge.

Social Media Policy • Obtain express notice and consent – obtain

employee acknowledgment and issue periodic reminders of policy.

– System log in page

– Email disclaimers

– Periodic policy review

– Periodic policy re-distribution

Social Media Policy (continued)

Include a disclaimer to explain that the policy does not prohibit, and is not intended to prohibit, employees from engaging in protected concerted activity or discussing wages, hours and working conditions.

Social Media Policy (continued)

• Monitor: Consider whether to monitor sites and if so, greatly limit the when, how and to what extent.– But remember NLRA and privacy law:

• Don’t engage in overzealous surveillance of employee social media.

• Sometimes it’s best to let the workers come to you!

• Policy should be careful about making endorsements of the employer (FTC Rules).

• Employees should be warned not to “vent” on Facebook about patients.

• Employees should be discouraged from “friending” patients.

• Don’t post what you wouldn’t say on an elevator.

Social Media Policy (continued)

• Warn employees that PHI could include date of service, clinical details, gender, etc.

• Mine your entity’s social media presence regularly.

Social Media Policy (continued)

Best Practices: Hiring• Use internet and social media to enhance

recruitment and searches, but not exclusively.

• Consider value and risks associated with utilizing social media networks geared toward certain demographic traits.

Other Considerations

• Subpoenas to social media sites for civil lawsuits likely will not work.

• You can generally only get basic subscriber information.

Checklist of Questions for Discipline

• How did I learn of the social media post in question?

– Public site.

– Other employees who bring it to you.

– Never require an employee to show you their social media.

Checklist of Questions for Discipline

• Who is the audience for the speech?

– Public?

– Semi-private (Facebook friends)?

– Co-workers included?

Checklist of Questions for Discipline

• What is the content of the speech?

– Does it contain PHI?

– Is it individual griping about work, or is the employee griping on behalf of others?

– Does the griping concern wages, hours and working conditions?

Milwaukee | Madison

411 East Wisconsin Avenue | Suite 1000 | Milwaukee, WI 53202 | www.vonbriesen.com

Thank YouPresented By

Doris E. Brosnanvon Briesen & Roper, s.c.

Chair – Labor and Employment Law Section411 East Wisconsin Avenue, Suite 700 · Milwaukee, WI 53202

Direct 414.287.1405 dbrosnan@vonbriesen.com

This presentation is prepared to provide information for the subject matter covered. It is presented in conjunction with an oral presentation. This outline should not be utilized as a subject or in lieu of legal services in specific situations. If legal advice or other expert assistance is required, the services of an attorney should be sought. This presentation is owned and copyrighted by the program presenter and may not be reproduced without

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