Social Media Issues
AHLA Physicians & Hospitals
Law Institute
February 2012
Kimberly W. Daniel, Esq.
Hancock, Daniel, Johnson & Nagle, P.C. Maria Greco Danaher
Ogletree, Deakins, Nash, Smoak & Stewart, PC
Social Media
What is it?
Generally, “social media” means
internet-based platforms allowing individuals to
communicate, network and share information to anyone viewing or subscribing to the
Social Media
Examples: Facebook MySpace Twitter LinkedIn YouTube Blogs Leaving comments in news stories 3Social Media
Issues arise:
Personal use by employees on their own
social media accounts or other personal postings;
Use by employees/other individuals on sites
maintained by healthcare companies for marketing purposes; and
Use by healthcare companies for recruiting
Social Media
According to a survey by Pew Research,
66% of online adults use social media
platforms such as Facebook, Twitter,
MySpace or LinkedIn.
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Social Media
Marketing Purposes
Recent Pew Poll showed 66% of American
adults look online for health information on a specific disease or medical problem.
Social Media
Marketing Purposes
More than 1,000 hospitals currently use a
major social media outlet such as Facebook, YouTube, Twitter or LinkedIn.
Through July 2011, about 660,000 people
“liked” Children’s Hospital Boston’s Facebook page.
More Facebook Friends than any other hospital in
the country.
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Social Media
Recruiting
According to a Career Builder survey in 2009,
45% of employers use social media sites like Facebook, MySpace, Twitter and LinkedIn to screen job applicants.
Social Media
Recruiting
Ohio State University Medical Center pilot
program using LinkedIn as a recruiting tool.
Identify highly-skilled recruits for specialized roles. Instead of an ad, OSCUMC creates a connection to
find candidates and let them know of openings.
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Social Media:
Disciplinary Issues
Employees disparage the company,
supervisor or coworker in a “public”
forum;
Employees post confidential or personal
health information (or photos) of patients;
Employees contact co-workers with
unwelcome/harassing personal messages.
What action may employers take?
NLRB
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THE NATIONAL LABOR
RELATIONS ACT
The NLRA protects associational rights of both
union and non-union employees.
Section 7 of the NLRA provides in relevant part:
Employees shall have the right to self-organization, to
form, join, or assist labor organization . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” (29 USC § 157).
“CONCERTED ACTIVITY”
“Concerted activity” is any activity by
individual employees who are united in
pursuit of a common goal. To find an
employee’s activity to be concerted, the
action must be engaged in with or on the
authority of other employees, and not
solely by and on behalf of the employee
himself.
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“PROTECTED CONCERTED
ACTIVITY”
Activity engaged in for employees’ “mutual aid
or protection,” or as efforts to improve working conditions and terms of employment is protected under the NLRA.
Such activity includes circumstances in which
individual employees act to initiate group action, as well as actions by individual employees
bringing group complaints to the attention of management.
VIOLATION OF THE NLRA
If an employee is engaged in protected
concerted activity, an employer may violate the NLRA if:
The employer knows of the concerted nature
of the activity; and
An adverse employment action (i.e., discipline
or firing) taken by the employer is motivated by the employee’s protected activity.
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SECTION 8 OF THE NLRA
Section 8 of the NLRA (29 USC §
158(a)(1)) provides:
“It shall be an unfair labor practice for an
employer to interfere with, restrain, or coerce employees in the exercise of the rights
RETALIATION UNDER THE NLRA
An employer’s retaliatory conduct against an
employee because of that employee’s protected concerted activity specifically violates Section 8 of the NLRA.
Remedies for unfair labor practices include
reinstatement with full back pay plus interest. Employers also are required to post a notice to all employees detailing the violation and the remedy.
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HOW DOES THIS RELATE TO
SOCIAL MEDIA???
THE “FACEBOOK CASES”
In the past year, the NLRB has increased its focus on
social media communications, specifically including Facebook and Twitter.
It has focussed primarily on postings that include
discussion regarding the terms and conditions of employment.
Such activity has been cited by the NLRB as “protected
concerted activity” under Section 7 of the NLRA.
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HEALTHCARE EMPLOYER
“UNFRIENDED” BY THE NLRB
One of the first cases highlighted by the NLRB on thisissue involved an ambulance driver’s comments on her Facebook page, for which she was fired.
That firing led to a charge of unfair labor practices from
the NLRB, which designated the postings as “protected concerted activity” under the NLRA.
Settlement of the matter included reinstatement and
MORE FACEBOOK CASES
In April 2011, a settlement between the Newspaper
Guild and a publishing company avoided a threatened complaint by the NLRB.
In May 2011, the NLRB issued a complaint alleging that
a Buffalo non-profit violated the NLRA when it fired five employees after they used Facebook to criticize working conditions. The five were reinstated after trial.
In July 2011, the firing of a car saleman was upheld,
with admonition by an administrative judge that Facebook postings could have been protected activity.
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NOT ALL FACEBOOK FIRINGS
VIOLATE THE NLRA
Disgruntled employee/bartender’s Facebook
postings referenced his customers as “rednecks” and stated that he hoped they “choke on glass” as they drive home drunk. The postings were not discussed with other employees, either before or after the posting.
An OGC opinion letter stated that there was no
evidence of “protected concerted activity” and that, therefore, the firing of the individual
NOT ALL FACEBOOK FIRINGS
VIOLATE THE NLRA
Employee of residential facility for homeless
people with significant mental health issues was fired after engaging in a Facebook conversation with a non-employee/friend in which she
referred to a client’s “voices,” and made other negative comments about the residents.
The OGC pointed out that the employee was not
seeking to induce or to prepare for group action related to her job conditions and that her actions were for personal amusement. Her firing
therefore was not in violation of the NLRA.
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WHAT EMPLOYERS SHOULD DO
Clearly, the NLRB has increased its focus on social mediacommunications, taking the position that employer policies cannot impose limitations on electronic communications if those postings include discussion regarding the terms and conditions of employment.
Based upon that increased focus, employers should take
the opportunity to review their social media policies, and to train managers and supervisors to coordinate with their human resources departments any planned disciplinary actions based upon the use of electronic communications, especially if those communications involve personal postings.
THE WHOLE PICTURE
Last year, the U.S. Chamber of Commerce submitted a
Freedom of Information Act (FOIA) request to the NLRB, seeking “copies of all charges, complaints, and
completed settlements related to social media.”
In response, the Chamber received information going
back to 2009 which included 117 charges, 7 complaints, and 5 settlement agreements, and compiled that
information into a survey of the NLRB’s caseload related to social media.
The full survey can be found at www.uschamber.com.
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Other Legal Issues Arising From
Social Media Use
Breach of Patient Confidentiality
Discrimination and Harassment
Defamation
Privacy Issues
Social Media
Journal of the American Medical
Association published a survey in 2009.
60% of medical and nursing students polled
were found to have made unprofessional postings online that violate patient
confidentiality, contain discriminatory language, or present inappropriate sexual references.
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Social Media
Breach of Patient Confidentiality:
HIPAA: health care providers must keep
individually identifiable health information private and secure, except within specific limited circumstances where disclosure is allowed.
Some employees believe that just leaving off the
patient’s last name is enough (but this is a problem in small communities or where the aggregate information is enough to identify)
Social Media: Patient
Confidentiality
Nov. 2011 publication reported that a
pediatric nurse posted a photo of a child
in a hospital bed on her Facebook page,
along with a plea for prayers, as he was to
undergo brain surgery.
The child, whose first but not last name was
mentioned, was not her patient, the nurse said, and the photograph was taken in another hospital.
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Social Media: Patient
Confidentiality
Nurse also claimed that the child’s mother
gave her the photo to post.
Would need a HIPAA-compliant, signed
authorization
Without authorization, the nurse was still
bound to safeguard the child’s PHI because she was an employee of a Covered Entity, regardless of whether she had a direct treatment relationship with the child.
Social Media:
Discrimination and Harassment
Discrimination issues in the hiring process:
Employers who search applicants’ social
media sites may obtain information they
would not normally find out from a resume or interview (disability, religion, health issues).
If the employer decides not to hire the individual,
it’s best not to have information that he/she could use as a basis for a discrimination suit.
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Social Media:
Discrimination and Harassment
Harassment issues can arise when
coworkers and supervisors are Facebook
Friends.
Although many employees would not give a
personal email address or home phone
number to a coworker they do not know very well, they would not hesitate to become “Facebook Friends,” which can allow for private message conversations.
Social Media:
Discrimination and Harassment
Harris v. North Park Clubhouse Lounge
Waitress Harris complained to Human
Resources when a manager uttered a sexual slur against her.
The tavern owner then posted threatening
comments on her Facebook page that did not name the waitress, but were clearly directed at her.
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Social Media:
Discrimination and Harassment
The waitress’ co-workers commented on
the owner’s post with statements like
“People like [the waitress] should burn in
hell.”
Waitress filed a Charge with the EEOC,
claiming that the threatening Facebook
posts were retaliation for her original
complaint of harassment.
Social Media:
Discrimination and Harassment
Yancy v. U.S. Airways
, 2011 U.S. Dist.
LEXIS 78784 (E.D. La. 2011).
Customer service agent Yancy filed her first
EEOC Charge for sexual harassment after customer service supervisor posted a photograph of her on his Facebook page.
Photo showed Yancy hunched over her desk
with her underwear visible; she appeared to be sleeping.
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Social Media:
Discrimination and Harassment
Yancy complained that the photo
showcased at least part of her buttocks
and that she was crouched over the desk
from the pain of yet-to-be-discovered gall
bladder problems.
U.S. Airways disciplined the supervisor,
but did not discharge him.
Social Media:
Discrimination and Harassment
Dissatisfied that US Airways had not
discharged the supervisor, Yancy filed an
EEOC Charge.
She was later placed on suspension for
sending a lewd text to a coworker, which
she denied.
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Social Media:
Discrimination and Harassment
Yancy filed a second EEOC Charge,
alleging that she was suspended as
retaliation for filing the first EEOC Charge.
Yancy was then placed on furlough, and
she filed a third EEOC Charge alleging that
she was selected for furlough in retaliation
for filing her first two charges with the
EEOC.
Social Media:
Discrimination and Harassment
District court granted Defendant’s Motion
for Summary Judgment on Yancy’s claims
of retaliation and intentional infliction of
emotional distress.
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Social Media:
Defamation
Low & Tritt
v.
The Pizza Kitchen
(Tenn.)
Knoxville marketing firm filed a $2 million libel
lawsuit against a former client claiming comments posted on social media sites Facebook and Twitter hurt its reputation.
Social Media:
Defamation
Marketing firm alleges that the
restaurant’s owner defamed them in two
Facebook entries that said, "Do not EVER
use Lowandtritt mktg. firm!" and
"CROOKS! - Stolen email list, and have
tried to pressure me by threat of lawsuit
to sign a 'license agreement' to use their
mktg materials."
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Social Media:
Defamation
The following day on Twitter the owner
posted, "Lowentritt mktg firm has done it
again..." and "Can you believe that they
have not only stolen my email list, but
have now hacked Pizza Kitchen's facebook
page taking it offline?"
The posts were published to more than 300
Facebook friends of The Pizza Kitchen and 247 followers on Twitter, according to the
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Social Media
Privacy Issues
Employers can leave no question that
employees have no “reasonable
expectation of privacy” on
company-owned computers and electronic devices
by so stating in a clear company policy.
Social Media:
Privacy Issues
If Employer allows personal use of
company computers and electronic
devices and does not have such a policy,
employees may be able to show that they
have a reasonable expectation of privacy
in their personal emails, etc. sent and
received on those company provided
devices.
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Social Media:
Privacy Issues
For personal employee web pages on
social network sites or otherwise the
employee may have a privacy interest if
the employee has taken reasonable efforts
to keep the information private.
Social Media:
Privacy Issues
If employee has a personal webpage that
is accessible and open to internet users,
the employee has not taken reasonable
steps to keep such information private.
However, if an employee’s personal
webpage can only be accessed with a
proper password, and he only provides the
password to select friends and family, he
has taken reasonable steps to keep such
information private.
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Social Media:
Privacy Issues
Stored Communications Act, 18 USC
§2701.
Prohibits third parties from accessing
electronically stored communications (like email) without proper authorization.
Intended to prevent hackers from accessing
electronically stored communications.
Social Media:
Privacy Issues
Example cases:
Konop v. Hawaiian
Airlines
(9
thCir. 2002).
Employee, a pilot, alleged employer airline
viewed his secured website in violation of SCA.
Pilot maintained a website, in which he
criticized the airline, the airline’s officers and the union.
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Social Media:
Privacy Issues
Konop v. Hawaiian Airlines
Certain airline employees could access the site with a
user name and password, but management was expressly excluded.
VP of airline accessed the website with help of an
eligible employee.
9th Circuit held that if the eligible employee
constituted a “user” of the website (meaning he could authorize a third party to access the website), then VP was authorized to access the website and could not be liable under the SCA.
Social Media:
Privacy Issues
Pietrylo v Hillstone Restaurant Group d/b/a
Houston’s
(D.N.J. 2008). The employer viewed employees' internet discussion
group critical of the employer by getting another employee's password.
Employee felt that if she did not provide her
password to employer, she would “get in trouble.”
Employer discharged the employees based on content
of the discussion group.
A jury found defendant employer violated the SCA
and awarded the discharged employees compensatory and punitive damages.
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Social Media:
Privacy Issues
Pietrylo
, cont’d. Jury found the employee's authorization was coerced,
so the employer's access was unauthorized and its managers improperly accessed the site several times, despite knowing access was restricted.
Punitive damages awarded because the jury found
the employer acted maliciously in repeatedly accessing the employees' site via the other employee's password.
Manager knew access was unauthorized
Employee was not told other managers would be given her password or that management would repeatedly access the site.
Social Media
Other issues when supervisors and
subordinates are “Facebook Friends.”
Comments on employee performance on
social media (“You are the greatest!”) could be used to counter an employee’s discharge for poor performance.
Alternatively, negative Facebook comments
like “He is the worst ever!” could be the basis for defamation claims.
Other Cases Involving Social
Media and Business
iYogi Holding Pvt. Ltd. v. Secure Remote
Support
, 2011 U.S. Dist. LEXIS 144425 (N.D.Cal. 2011). Plaintiff iYogi and Defendant Secure Remote Support
(“SRS”) both provide remote computer technical support services.
Plaintiff alleged that Defendant’s website contained a
blog which contained false statements about iYogi’s business.
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Other Cases Involving Social
Media and Business
Defendant also operated a website that led
consumers to believe it was operated by a neutral third party reviewer, on which
Defendants falsely stated the iYogi had an “F” rating with the Better Business Bureau.
Other Cases Involving Social
Media and Business
Plaintiff also alleged that Defendants published
false, misleading and defamatory reviews, testimonials and comments regarding Plaintiff's services on other consumer websites (without disclosing the fact that the authors of these negative comments have a material connection with SRS, an iYogi competitor) with the intention of damaging Plaintiff's business reputation.
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Other Cases Involving Social
Media and Business
The district court ruled for the Plaintiff on its
state law claims of unlawful business practices and unfair competition and false or misleading advertising, federal false advertising claims under the Lanham Act § 43(a)(1)(B), 15 U.S.C. § 1125; and violation of the Anticybersquatting Consumer Protection Act, under 15 U.S.C. § 1125(d).
Other Cases Involving Social
Media and Business
Eagle v. Morgan, et. al,
2011 U.S. Dist.
LEXIS 147247 (E.D. Pa. 2011).
Plaintiff founded a financial services company,
Edcomm with two other individuals, and had an account on LinkedIn.
She used her LinkedIn account to promote
Edcomm’s services and bolster her business reputation.
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Other Cases Involving Social
Media and Business
In 2010, SISCOM purchased all of the
outstanding shares of Edcomm.
Initially, all three founders of Edcomm
remained employed as Edcomm
executives, but within a few months, they
were all involuntarily terminated.
Other Cases Involving Social
Media and Business
When Eagle tried to access her LinkedIn
account later in the day, she could not.
Eagle’s former assistant, still employed by
Edcomm, knew Eagle’s LinkedIn password
and changed Eagle’s account profile so
that it would display the new Chief
Executive Officer’s name and photograph.
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Other Cases Involving Social
Media and Business
As a result, individuals searching for Eagle on
LinkedIn were routed to a page with the new CEO’s photo, but with Eagle’s honors, awards, recommendations and connections.
Eagle eventually regained control of the
Other Cases Involving Social
Media and Business
Plaintiff initiated legal action against Defendants,
alleging: (1) violations of the Computer Fraud and Abuse Act ("CFAA"); (2) violation of the Lanham Act; (3) unauthorized use of name; (4) invasion of privacy by misappropriation of identity; (5) misappropriation of publicity; (6) identity theft; (7) conversion; (8) tortious interference with contract; (9) civil conspiracy; and (10) civil aiding and abetting.
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Other Cases Involving Social
Media and Business
Defendants filed a counterclaim alleging
that the LinkedIn account was maintained
for the benefit of Edcomm and that
Edcomm personnel developed and
maintained all connections and much of
the content on Eagle’s LinkedIn account.
Other Cases Involving Social
Media and Business
Defendants contended that Plaintiff
wrongfully misappropriated Edcomm’s
connections on the LinkedIn account as
well as her Edcomm cell phone number.
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Other Cases Involving Social
Media and Business
Defendants’ counterclaim alleged: (1)
violations of the Computer Fraud and
Abuse Act, (2) misappropriation; (3) unfair
competition; (4) conversion; (5) tortious
interference with contract; (6) violation of
the Pennsylvania Uniform Trade Secrets
Act, and (8) tortious interference with
prospective relations.
Other Cases Involving Social
Media and Business
No ruling yet on the Plaintiff’s claim(s).
Plaintiff filed a motion to dismiss the
counterclaims of Defendants.
Court ruled: Dismissed the CFAA claims,
as well as the claims of tortuous
interference with contract, violation of the
Uniform Trade Secrets Act and tortuous
interference with prospective relations.
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Other Cases Involving Social
Media and Business
Court denied Plaintiff’s motion to dismiss
for the claims of misappropriation, unfair
competition and conversion.
Court rejected Edcomm’s claim that Eagle
unlawfully misappropriated a trade secret.
Other Cases Involving Social
Media and Business
The LinkedIn connections do not qualify
as trade secrets because they are
generally known in the business
community and are easily derived from
public information.
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Other Cases Involving Social
Media and Business
But, the court did not dismiss Edcomm’s
claim that Eagle misappropriated an idea.
Court noted that Edcomm alleged that its
employees developed the accounts,
maintained the connections and contacted instructors and specific personnel within its clients through LinkedIn.
Policy Provisions and
Considerations
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Policy Provisions and
Considerations
In a recent survey of 120 national and
international companies, 45% of the
companies did not have a social media
policy.
Policy Provisions and
Considerations
Determine the company vision, mission
and goals regarding social media.
Is the image more traditional or “cutting
edge?”
Is the goal to make use of “grassroots”
marketing” through YouTube hits and Twitter followers?
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Policy Provisions and
Considerations
Determine company’s position on use of
social media:
By employees while in the workplace By employees while outside the workplace By the company during the recruiting or hiring
Policy Provisions and
Considerations
Define what is and what is not appropriate
social media use.
Prohibit false or obscene statements;
Prohibit harassing statements or statements
disparaging an individual’s race, religion, age, sex or disability;
Prohibit the posting of any confidential
information about patients;
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Policy Provisions and
Considerations
Prohibit the posting of any photos of patients on
personal social media;
Prohibit the posting of photos taken anywhere
on company property on personal social media;
Encourage employees to post photos of
workers taken outside of work only with the co-worker’s permission;
Policy Provisions and
Considerations
Explicitly state that the policy is not intended to
interfere with protected activity or infringe upon employees’ rights.
Prohibit disparaging comments about the
company, coworkers or supervisors that are not related to working conditions;
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Policy Provisions and
Considerations
Prohibit disclosure of company financial,
proprietary or other confidential information;
Prohibit use of company trademarks or
logos on personal social media.
Specify that employees are not to speak
for companies on social networking sites
or blogs, only for themselves.
Policy Provisions and
Considerations
Require supervisors to comment on an
employee’s performance only as part of a
formally established review process, and
prohibit managers from any informal
review systems on social networking sites
or anywhere else.
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Policy Provisions and
Considerations
For a healthcare provider’s marketing site:
use a disclaimer as to medical advice.
State that posts by others not affiliated
with the provider are their own opinion
and not attributable to the hospital;
Give notice that the provider may review,
edit or remove postings from its social
media page.
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Policy Provisions and Considerations
Reiterate that the company’s harassment
and discrimination policies apply to
employee’s communications on social
networking websites.
Policy Provisions and Considerations
Prohibit any use of employer’s data that is
unauthorized.
Prohibit conduct or statements that are
“contrary to the employer’s business
interests.”
Reflects poorly on employer Damages customer relationships
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Policy Provisions and Considerations
Require employees to sign an
acknowledgement form that they have
received, read and understand the policy.
Provide that employees who violate the
policy will be disciplined, which may
include immediate discharge.
