NLRB report raises questions about social media use at practices

The National Labor Relations Board has answered yes to the question of whether a physician can fire an employee for complaining about the practice on social media.

But that's only if a single employee is doing the complaining. If multiple employees are talking online, particularly to one another, and have legitimate gripes, no one can get fired, according to the NLRB. So for physicians, the questions raised by the report are: What is legitimate online workplace griping? And, just because firing an employee for taking complaints to the Internet is legal, is that the best way to handle the situation?

In August, the NLRB put out a report on social media and workplace complaints in the wake of court cases and other incidents involving what employers can and can't do when employees take their workplace complaints to the Internet.

"The main takeaway from the NLRB general counsel's report is that employers may not terminate employees for 'protected concerted activity' carried out through social media," said Melanie Black Dubis, a partner at the law firm Parker Poe Adams and Bernstein, which has offices in North Carolina and South Carolina.

Chris Mills, a partner at the New Jersey law firm Fisher & Phillips, said the NLRB report can help guide physicians. The guidance starts with three questions intended to answer the most important question: Is this a protected activity?

How are the comments phrased? Mills said that just because the comments contain bad language, that doesn't mean they are not protected. What's important is whether the comments were intended to initiate, or continue, a conversation about work conditions among employees. Many times the online activity is a continuance of a conversation employees began offline.

Where and when did the conversation take place? Even if the content of the online discussion is acceptable, if it happened on company time there might be cause for termination. Employees cannot let their job performance suffer by participating in organizing or labor activities. Therefore if an employee policy prohibits the use of social media on company time, there might be a legal cause for termination.

Who is the audience? Labor laws are pretty clear that comments made by one person alone are not protected. But comments made to random Facebook friends also are unlikely to be protected. If the conversation is among co-workers, it's more likely to be viewed as concerted activity, Mills said.

Barry Elson, a partner with Thorp Reed & Armstrong in Pittsburgh, said the importance of having a well-written social media policy cannot be overstated. The NLRB will look at the policies the employer has, "and if it seems to be overly broad, so that it could be prohibiting discussion of working conditions, then they are going after the employer."

Elson, who began his legal career with the NLRB and whose clients include small physician practices, said the employee social media policy must make clear what is prohibited and what is exempt. And physician practices must emphasize that discussions about patients, or disclosing financial or medical records, are absolutely forbidden, he said. Clear violations of those policies could leave the practice with the legal ability to fire employees who break the rules. Violating privacy in the name of workplace discussion is not protected.

But firing a complaining but otherwise good employee may not be a physician's best option, even if it is legal.

Roberta Matuson, a human resources consultant and president of Human Resource Solutions, a Massachusetts-based consultancy firm, said employers always must have an ear to the ground for employees who are disengaged. The practice needs to decide whether to work with the employee to resolve the problem or part ways.

Elson said the first thing to consider is the severity of the incident.

"This does not necessarily mean how harmful it was, but how foolish, lacking in concern or ill-willed, along with some evaluation of what could have been the harmful results," he said. To some degree, he said, this could be a generational issue, as younger employees might be quick to post things online.

"These employees often can be taught, not by handing them a policy but by explaining the reason for a policy and the consequences face to face. These can be potentially good employees that need to learn business world expectations," he said.

What about employees whose online activities are protected under labor laws but whose presence in the office may be toxic? "You may not be able to fire an employee for a posting they have written, but in states where there is employment at will, I'm sure employers can come up with a million other reasons why someone was just let go," Matuson said.

Retaliation for a protected activity is illegal, Elson warned. However, employees should know they cannot be treated differently than other employees when it comes to workplace conduct, regardless of the protected activities with which they are engaged.

"If they violate other legitimate rules or engage in some other improper conduct, they are not protected for that wrongdoing," Elson said.

The reality is that employees always will have so-called talks around the water cooler. The difference now is the talks have extended to the Internet. Although the talks may be harmless, or even protected by law, employers still can discipline employees for not doing their jobs, Mills said.