Discipline Based on Employees’ (Mis)Use of Social Media on the Rise

In
a case that has garnered national attention, a medical technician at a Michigan hospital was
fired in July 2010 for a posting on her Facebook page. There has been a
dramatic increase across the country in the number of employees discharged
based on their use of social media, according to a recent survey from
Proofpoint Inc., a California-based email security company. Case law in this
cutting-edge area continues to evolve, and employers need to keep abreast of
the latest developments.

The
Michigan case
involved an unusual fact pattern. The technician happened upon a shootout
between an alleged bank robber and the police. The next day, she was involved
in the hospital’s treatment of the police officer and the shooter. The officer
died, and the technician posted on her Facebook page that she had come
"face to face" with a "cop killer." Someone alerted the
hospital administration to the posting. Concerned that the posting violated the
strict patient privacy rules under the federal HIPAA law, the hospital
terminated the technician. She has grieved the decision.

As this case illustrates, employers are increasingly involved in monitoring
electronic, and many times off-duty, conduct of their employees. Employers are
faced with tough decisions requiring them to balance their own interests with
their employees’ right to privacy, and to the freedom of thought and expression
typically associated with off-work hours. These thorny issues require careful
analysis to avoid an undue risk of legal exposure. Employers need to be aware
of these issues and make sure that they have appropriate electronic social
networking policies in place. Without such policies, employers’
investigations and discipline relating to the misuse of social media can appear
ad hoc or arbitrary.

If you would like more information about the misuse of social media in the
workplace, or assistance in drafting a social networking policy, please contact Daniel S. Tarlow at 617 456 8013 or dtarlow@princelobel.com.