Hospitals & Social Media

Laws Implicated

• Federal Trade Commission– Disclosure of employment status– False or misleading statements

• State & Federal Wiretap Laws– If access “without authorization”

• Title VII, ADA, etc.– Discriminatory comments– Harassing messages or pictures

Laws Implicated

• Arkansas Trade Secrets Act• Fair Credit Reporting Act• National Labor Relations Act– Section 7 Rights

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 other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.

– Criticism of supervisor and employer– Prohibition against surveillance

Risk Management

• Content Management• Comment Posting Rules• Disclaimers – “This is not medical advice.”

• Response Protocol

What is Social Media Privacy?

• Using social media postings to screen out applicants

Has BYOD replaced BYOB?

• Accessing personal devices at work

We have the Right to Complain?

• Discipline for critical social media posts

DISH Network Social Media Policy

• Policy:– “You may not make disparaging or

defamatory comments about [Employer], its employees, officers, directors, vendors, customers, partners, affiliates, or our, or their, products/services.”

DISH Network Social Media Policy

• National Labor Relations Board Acting General Counsel May 2012:– “[T]he prohibition on making ‘disparaging

or defamatory’ comments is unlawful. Employees would reasonably construe this prohibition to apply to protected criticism of the Employer’s labor policies or treatment of employees.”

Clearwater Paper Social Media Policy

• Policy: – “Employees are prohibited from posting

information regarding [Employer] that could be deemed material non-public information or any information that is considered confidential or proprietary.”

Clearwater Paper Social Media Policy

• NLRB Acting GC May 2012: – “The term ‘material non-public information,’ in

the absence of clarification, is so vague that employees would reasonably construe it to include subjects that involve their working conditions.”

– “[T]he term ‘confidential information,’ without narrowing its scope so as to exclude Section 7 activity, would reasonably be interpreted to include information concerning terms and conditions of employment.”

Wal-Mart Social Media Policy

• Policy on content of communications:– Prohibits “inappropriate postings that may

include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.”

– “Examples … might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other [protected] status.”

Wal-Mart Social Media Policy

• NLRB Acting GC May 2012 :– Policy not ambiguous because “it provides

sufficient examples of prohibited conduct so that, in context, employees would not reasonably read the rules to prohibit Section 7 activity.”

Wal-Mart Social Media Policy

• Policy on protection of confidential information:– “Maintain the confidentiality of [Employer]

trade secrets and private or confidential information. Trades secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.”

Wal-Mart Social Media Policy

• NLRB Acting GC May 2012 : – “Employees have no protected right to disclose

trade secrets. Moreover, the Employer's rule provides sufficient examples of prohibited disclosures (i.e., information regarding the development of systems, processes, products, know-how, technology, internal reports, procedures, or other internal business-related communications) for employees to understand that it does not reach protected communications about working conditions.”

Other Issues?