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Social media present challenges for healthcare employers, employees

August 8, 2014
by Alan C. Horowitz, RN, JD
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A clear policy can help you meet your legal responsibilities

As youngsters, many of us heard our parents admonish us: “If you have nothing good to say, then say nothing at all.” That sage counsel is even more important when it comes to social media.

Joseph Talbot worked as an LPN at Desert View Care Center in Idaho in January 2013 when he posted the following on Facebook: “Ever have one of those days where you’d like to slap the ever loving bat snot out of a patient who is just being a jerk because they can? Nurses shouldn’t have to take abuse from you just because you are sick. In fact, it makes me less motivated to make sure your call light gets answered every time when I know that the minute I step into the room, I’ll be greeted by a deluge of insults.”

A nursing professor who saw the Facebook posting notified Desert View, and the facility fired Talbot for violating its social media policy. Talbot then applied for unemployment benefits, which initially were granted by the Idaho Department of Labor (IDOL).

Desert View appealed the IDOL decision to the Idaho Industrial Commission, which reversed the IDOL’s decision because an employee is not entitled to unemployment benefits when he or she is discharged for misconduct in connection with employment. On further appeal, the Idaho Supreme Court, in Joseph E. Talbot v. Desert View Care Center (PDF), also held that Talbot was not eligible for unemployment compensation because his employment was terminated for misconduct (that is, violating Desert View’s social media policy). Although Talbot argued that Desert View had not communicated the policy to him, his signature on a document attested to the fact that he “received the updated Social and Electronic Media policy and agree[d] to the requirements of that policy.”


Among the many lessons gleaned from the Talbot case, one is that employers should have in place a clearly articulated policy regarding social media and should ensure that all employees acknowledge and abide by it. Two of the five justices on the Idaho Supreme Court disagreed with the majority opinion, saying that the facility’s social media policy was vague. Thus, the need for clarity cannot be overstated. When tension exists between a person’s First Amendment right of freedom of speech and prohibited speech, a coherent policy can help make clear the boundaries of each.

Desert View’s policy prohibited “slanderous, vulgar, obscene, intimidating, threatening or other ‘bullying’ behavior electronically towards any physician, vendor, conservator, regulator, competitor, fellow employees, managers and the family members of our patients…or…other stakeholders.” Talbot claimed he was “just frustrated and venting.” The court held otherwise, maintaining that the facility did not have to wait until a resident was slapped or until Talbot refused to answer a call bell in a timely manner. The threat of those actions, which violated the policy, was sufficient grounds for employment termination and denial of unemployment benefits, the court held.



Alan C. Horowitz

Partner at Arnall Golden Gregory

Alan C. Horowitz

Alan C. Horowitz, Esq., is a partner at...