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, 2013 case, Sara Debord claimed she was retaliated against for making a sexual harassment claim using a Facebook post. The post she re- ferred 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 compa- ny has a union or not, the NLRB protects employ- ees who are attempting to gain support of cowork- ers 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 neces- sarily establish protected concerted activity. In one case, (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 voyeuris- tic use of social media. There are cases of hospi- tal 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 healthcare cases point out how breaching the reasonable expectation of privacy feels. These cases were addressed using Health Insurance Port- ability & Accountability Act (HIPAA), code of conduct and ethics policies. Healthcare professionals were disciplined; some were dismissed for these acts. It was determined the nursing students were improperly dismissed from school. The stu- dents had permission to photograph and there was no violation of patient privacy. Healthcare 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.
What employers should do:
1. Manage company information. Identify what is confidential and/ or proprietary and establish rules for access and use.
2. Review existing policies to determine where social media needs to be added as a method of communication.
3. Determine how employees are currently using social media and whether that may impact the business and/or productivity.
4. Establish a policy for social media especially if you are using it as a marketing tool.