Social Media Policy Lawsuits, Part 2 of 2

Yesterday I covered an example of lawsuits sparked by teachers unions and school boards over social media policies. Today I’ll carry it a little further with another case involving unions as well as a professional association.

Complaining about Your Job

An employee at an ambulance company, faced with complaints on her behavior, was denied the ability to have the Teamsters respond on her behalf. Using Facebook, the employee lashed out at her supervisor, using vulgarities and a company term to imply the supervisor is mentally unstable. She was ultimately fired from the company and her Facebook comments were cited in her dismissal. The National Labor Relations Board, formed to protect employees who form unions or discuss working conditions, has stepped in to file suit claiming that the social media policy is too broad and that her Facebook comments cannot be used to fire her. The policy states that employees are not to discuss the company in any way on social media sites.

Since the NLRB is involved and weighing in on this, it’s a federal issue that applies across the country. Organizations don’t have to have unions to be affected by this, either. The NLRB ultimately felt the social media policy was too broad and infringing the employee’s rights to discuss her working conditions, which can have serious effects for companies who have already written policies with an eye toward restricting employees from discussing anything regarding their employers. Any disparaging comments about the supervisor’s mental capacity were dismissed by the NLRB as secondary to the issue.

Employment law firms across the country sent out alerts in the wake of this case, urging companies to re-examine their social media policies.

American Medical Association

Perhaps owing to the many private practices across the country that might not be in a position to draft a social media policy, or even care, the American Medical Association has released its own policy: AMA Policy: Professionalism in the Use of Social Media. While it isn’t a set of strict rules, according to the AMA release it is designed to help[…] physicians to maintain a positive online presence and preserve the integrity of the patient-physician relationship. An overview from the AMA (not that the policy itself is much longer):

• Use privacy settings to safeguard personal information and content to the fullest extent possible on social networking sites.
• Routinely monitor their own Internet presence to ensure that the personal and professional information on their own sites and content posted about them by others, is accurate and appropriate.
• Maintain appropriate boundaries of the patient-physician relationship when interacting with patients online and ensure patient privacy and confidentiality is maintained.
• Consider separating personal and professional content online.
• Recognize that actions online and content posted can negatively affect their reputations among patients and colleagues, and may even have consequences for their medical careers.

The policy, however, is silent on HIPAA on how it fits into social media. The short and simple answer is that it does not. HIPAA naturally precludes the use of social media for so much patient interaction that any physician following the rules of HIPAA should understand that casually sharing any information with or about patients is a bad idea.

The problem is that without this being explicitly spelled out, physicians who are not technically savvy may not understand that something like a tweet sent to a person (by preceding it with the recipient’s handle) or maintaining a venue on Foursquare would be a violation (not everyone should be given the opportunity to check in to an oncologist office).

There are still safe ways to use social media, and examples could be added as an appendix. For example, making a Facebook fan page for your dentistry practice or medical supply store is probably safe, as long as you police it to make sure people aren’t posing medical questions or seeking medical advice (and worse, getting it from other patients). This might be too much effort for a small practice to commit, and may not be tenable for many.

Conclusions

Crafting a social media policy is necessary, even if everything covered in it is already addressed in other policies. Providing specifics helps those without technical savvy to understand what they can and cannot do. The trick is be sure a policy isn’t too restrictive or otherwise unenforceable. As lawsuits roll back and forth across the country, in time, as with most other policies, a standard set of best practices will shake out. Until that happens, flexibility is important.

Related Links

• Corporate Social Media Policies, September 21, 2009 on this blog.
• Protecting Yourself From Social Media Lawsuits, July 21, 2010 from Social Media Today.
• The Ethics of Social Media – Part I: Adjusting to a 24/7 World, November 11, 2010 from Business Ethics magazine.
• Company Accused of Firing Over Facebook Post, November 8, 2010 from New York Times.
• Groundbreaking Lawsuit: Company Accused of Illegally Firing Employee over Facebook Post, November 11, 2010 from a California employment attorney blog.
• The Perfect Storm-Facebook, Email, NLRB, November 15, 2010 from Social Media Today.
• Company Social Media Policies Challenged, November 12th, 2010 from 1 Good Reason social marketing blog.
• AMA Policy: Professionalism in the Use of Social Media, November 8, 2010 at American Medical Association site.
• New AMA Policy Helps Guide Physicians’ Use of Social Media, November 8, 2010 at American Medical Association site.
• The Realities of HIPAA in Social Media, April 6, 2010 from the Lovell Communications blog.
• Sorting Out the Confusion of Social Media and HIPAA Regulations, October 9, 2009 from (e)Merge, a medical marketing company.