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What would you do, or what does your policy say you will do, if you discover an employee is regaling her blog subscribers and Facebook friends with on-the-job horror stories about her boss, the latest patient mishap, or complaints about how much overtime she’s been working? What if in doing so, she reveals sensitive and confidential patient information on social media, or damages your reputation in your community? How would you address a disgruntled ex-employee who gave the practice a harmful and hurtful review on Google or Yelp?
If your initial reaction is, “Ready-Aim-Fire,” you’ll need to take a step back, Boss!
“Can’t I just fire employees who post negative comments about my business on the internet?”
Not so fast. According to the National Labor Relations Board (NLRB), the old assumption that employers can exercise their at-will right and freely fire employees who say or post negative comments about their workplace almost always results in a breach of the employee’s rights and is thus not legal.
The NLRB’s position is that by federal law, employers cannot prohibit (or even discourage) employees from discussing their wages, benefits or conditions of employment. Because employees are just as likely to chat about their job complaints online as they are on the job, the laws protecting employees’ communications extend to what they do on the internet.
So whether employees are talking by the water cooler, on the internet, or in any other public forum, Section 7 of the NLRA, at its most basic level, gives employees the right to discuss their wages, benefits, and other conditions of employment.
These protections are so broad that they apply to all employers, regardless of whether your employees have formed a union or have any desire to. Many of you probably have a policy that forbids your employees from conversing about their wages, benefits and working conditions. Even if every other doctor you know has that policy, you should not. Even having such a policy violates the provisions of the NLRA, even if you never take action on it to fire or discipline an employee.
Regulating Employees’ Personal Internet Activities without Violating Fair Labor Practices
“What? They can just ruin my reputation, even if it’s vengeful lies?”
Just because the NLRB suggests employers can’t fire employees who post negative comments on issues of wages, benefits, and working conditions doesn’t mean your hands are tied. There are several things you CAN do to regulate your employees’ internet activities:
- You CAN keep employees from making harmful comments about your business. There is a difference (though sometimes a small one) between venting about the conditions of employment and trashing your business’s reputation online.
- You CAN prohibit an employee from harassing, stalking, or insulting you or other employees.
- You CAN and should regulate employees with regard to spending time on the internet when they should be working.
- You CAN regulate the types of images employees post online.
- You CAN and must regulate the disclosure of Protected Health Information (PHI).
- You CAN remind employees that personal information is no longer personal once they send it out into the vast, online universe.
- You CAN (and legally must) require employees to disclose that they’re employees of your business when they make a positive comment about you on the internet.
- You CAN make your employees doubly and triply accountable for their online activity with additional internet and email policies
- You CAN discipline and even terminate employees for violating your NLRB-compliant social media policy
- You CAN enforce referral companies like Yahoo and Yelp to comply with their own policies, which usually require a negative comment to come from a patient. This means that they will often take down a negative comment by a former employee.
Conclusion: You MUST have a 21st-century privacy and social media policy.
Remember, the internet is ever-expanding. It’s very hard to contain harmful information about your business once it’s out there. Having an up to date social media policy will help you avoid a mess and keep you from perhaps acting unlawfully against an employee who is engaging in protected activity. At the same time, it unties your hands so you can act when an employee has stepped across an acceptable line.
If you are missing this policy, think it may be time to update it, or have questions about this subject, please get in touch with us at email@example.com or call 866-414-6056. If you are not already a CEDR member, and have a current handbook you think passes muster, we will review it for you for FREE.
Thank you for learning with us! Enjoy a productive, harmonious, lawsuit free day!
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