The majority of employers in the United States do not have a published social media policy. Social media is complicated, which is precisely why employers need to have a set of social media policies to establish boundaries and help employees navigate the systems.
Policies and procedures need to work together. Social media is intertwined as another method of communication. Employers need to review all their policies to see if and where social media considerations need to be made and published.
In the Debord v. Mercy Health System of Kansas, Inc. (Nov. 201) case, Sara Debord claimed she was retaliated against for making a sexual harassment claim using a Facebook post. The post she referred to did mention her supervisor needed to keep his creepy hands to himself, however when human resources attempted to investigate, Debord failed to cooperate and disrupted the workplace with false messages about the investigation to other employees. Fortunately, Mercy Hospital had a flexible reporting procedure for harassment allegations which was well communicated.
The National Labor Relations Board (NLRB) issued a number of opinions defining how using the electronic water cooler may be considered protected concerted activity. Whether the company has a union or not, the NLRB protects employees who are attempting to gain support of coworkers to combat an unreasonable work condition or form a union. Care needs to be taken in drafting the policy as a result.
An employee venting on Facebook doesn't necessarily establish protected concerted activity. In the case of Klinger v. University of Mississippi (Dec. 2013), an assistant professor who was placed on a paid administrative leave sent messages to his students requesting they support him in his dispute with administration. He also posted his disciplinary document, and supporting documents from the investigation which placed him on the leave. The assistant professor's contract was not renewed and his claims were dismissed.
Social media is susceptible to misuse. A rapidly rising area of employment cases involve voyeuristic use of social media. There have been cases of hospital employees photographing sedated patients and posting the pictures on Facebook; posting pictures of a man dying of stab wounds in an emergency room instead of treating the man; and nursing students posing with placenta on Facebook.
These health care cases point out how breaching the reasonable expectation of privacy feels. These cases were addressed using Health Insurance Portability & Accountability Act (HIPAA), code of conduct and ethics policies. Health care professionals were disciplined; some were dismissed for these acts. It was determined the nursing students were improperly dismissed from school. The students had permission to photograph and there was no violation of patient privacy. Health care isn't the only industry battling in court over misuse of social media. No industry is safe.
Employers need to face the fact that as social media evolves so must policies to maintain a safe and respectful workplace.
Employers' To Do List:
- Manage company information. Identify what is confidential and/or proprietary and establish rules for access and use.