Employers advised to spell out social media policies to workers

By Michael Carroll | Mar 16, 2016

TAMPA (Legal Newsline) - Employees need to consider how their employers might react to their social media posts, and employers should have clear social media policies on the books that address issues like medical privacy and abuse of the Family and Medical Leave Act.

Those are some of the conclusions by employment law experts in response to a federal court’s decision to toss out a lawsuit filed by a nursing home activity director.

The director’s lawsuit alleged that his employer, Accentia Health and Rehabilitation Center of Tampa Bay, Florida, fired him over his taking medical leave.

Because he required shoulder surgery, the employee was permitted to take non-medical time off that extended beyond the 12 weeks earmarked in FMLA. While on leave, however, he posted photos of himself on his Facebook page swimming, enjoying the beach and vacationing in Florida’s St. Martins coastal area.

Jeff Nowak, a labor and employment attorney with Franczek Radelet in Chicago, noted in a recent blog post that the Florida federal court had little sympathy for the employee, concluding he violated the company’s social media policy.

The plaintiff’s superior testified that he terminated him “due to the poor judgment Plaintiff exhibited as a supervisor and the negative impact that his Facebook posts and text messages had among the associates at Accentia Health,” the court’s opinion states.

The employer’s social media policy said in part, “Social media usage that adversely affects job performance of fellow associates, residents, family members, people who work on behalf of (Accentia) or violates the (health) privacy law may result in disciplinary action up to and including termination.”

Nowak said the company used that policy to its advantage, and he advised other employers to have similar policies in place for such situations.

Eric Goldman, a professor at the Santa Clara University School of Law in California, also took note of the case on his Technology and Marketing Law Blog.

Goldman told Legal Newsline that despite this case and similar ones, he had not seen any studies indicating employers are increasing their monitoring of employees’ social media accounts.

“I think many employers are nervous about monitoring their employees’ accounts,” he said in an email. “For example, there may be legal restrictions on doing so, and there could be liability from learning information about an employee’s activities and not acting on it.”

On the other hand, the professor noted that in many situations co-workers and bosses are friends on social media, but this exposure to each other’s activities would not be considered “monitoring.”

Goldman advised employers to be cautious when they find evidence of egregious online conduct by an employee because they could face legal issues for disciplining an employee as a result of such posts. For example, if any social media post is related to workplace grievances, the discipline might not pass legal muster.

“The National Labor Relations Board has a very broad view about when employees are organizing to fix grievances with their employers,” Goldman said in his email, “so an employer who tries to discipline an employee may find that the employee can claim the employer violated the NLRB law for punishing him/her for organizing activities.

“Each incident must be carefully evaluated by employers.”

Goldman advised employees: “Don’t vent about your job online (e.g., saying ‘I hate my job’). Save that venting for face-to-face conversations.”

In addition, he offered this warning to workers: “If the employer has made any accommodations for you because of your special needs (e.g., health care), recognize that any social media posts may be scrutinized to see if the special needs are still in effect.”

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