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Understanding your employees’ protected online activity

April 3, 2012
by Cory Macdonald, JD, MPA
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Picture this scenario: A skilled nursing facility’s survey results in several findings of substandard quality of care. The facility determines that a particular employee played a significant role in allowing the deficiencies. This employee also had past instances of failing to meet job expectations, and the facility terminates the employee.

Shortly thereafter, a member of the business office staff notifies the administrator that current employees and others have been discussing the situation on Facebook—as is common in most workplaces these days, many of the facility’s coworkers are “Facebook friends.”

The online dialogue started with the terminated employee making a relatively innocuous comment regarding her status: “I’m sad … changes ahead … I will miss you all … you know who you are.”

Within only a few hours there were at least a dozen comments in response, from both employees and non-employees. One staff member commented, “You-know-who made you the scapegoat.”

Another employee commented, “Corporate doesn’t even know what is really going on. They just know whatever he tells them.”

A non-employee commented, “This same sort of thing happened to my friend and he fought it … different situation but it is worth considering. I can give you his number.”

After reading all the comments the administrator is quite upset. He provided only limited input on the decision to terminate and feels that he actually made a case for retaining the employee—and is tempted to go on Facebook and say as much. After talking it through with a trusted colleague, the administrator calms down and evaluates how to respond to the current employees that posted negative comments. Unfortunately, he does not have a social media policy to serve as a guide.

Even with a social media policy, however, this situation presents challenges because the communications could be deemed “concerted activity” under the National Labor Relations Act (NLRA).

DEFINING ‘CONCERTED ACTIVITY’

The NLRA protects employees’ rights to engage in concerted activity for the purpose of collective bargaining or other mutual aid or protection. The NLRA applies regardless of whether a work force is unionized. On January 24, 2012, the National Labor Relations Board (NLRB) released a report regarding 14 specific cases decided during 2011 that involved social media. These cases are instructive in understanding what the NLRB considers concerted activity.

In one case, an employee (who was later terminated) posted a status update on Facebook that included expletives, stated her employer “messed up” and that she was done being a good employee. The employee was reacting to a change in policy requiring her to work in a position that generally earned less commission. Other coworker/Facebook friends responded with additional complaints about their employer, with one going so far as to suggest a class action against the employer.

The NLRB found these Facebook postings to be complaints about working conditions and therefore “concerted activity,” meaning that the employee should not have been terminated based on the postings.

In contrast, another Facebook posting consisting of an expletive, followed by the name of the employer, followed 30 minutes later by a comment that the employer did not appreciate its employees, was not “concerted activity,” according to the NLRB. The Facebook poster had no particular audience in mind, the post did not grow out of earlier discussions with coworkers about terms and condition of employment and the post contained no language suggesting the employee sought to induce coworkers to engage in group action.

Similarly, a bartender’s Facebook posts that another bartender was “screwing over” customers by using a mix instead of premium alcohol, and that this activity was being condoned by management, was not concerted activity.

According to the NLRB, these protests over the quality of a coworker’s performance did not have enough of a connection to the poster’s terms and conditions of employment to warrant protection. A parallel to this in the long-term care setting might be posts about another employee’s use of a patient lift. If the employee posted that her coworker’s use of the lift put her in danger every day, that would probably be protected because of the connection to the conditions of her employment.

But if the posts were that a coworker took too long in transferring residents with the lift, and this annoyed her, it would probably not be protected.

WHAT IT MEANS FOR LTC

In my hypothetical scenario at the beginning of this piece, it seems fairly likely the NLRB would consider the SNF employees’ posts concerted activity. The administrator should proceed with extreme caution in considering any terminations based on the posts.

That being said, the patient privacy and professional liability issues implicated by social media in the long-term care setting create a unique need for caution by staff in using social media. What if the survey deficiencies involved a serious resident injury? What if the former and current employees entered into a lengthy discussion about the survey that revealed protected health information of facility residents? The Facebook discussion could end up being used in a medical malpractice lawsuit or a HIPAA compliance investigation.

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