Social Media Issues AHLA Physicians & Hospitals Law Institute February 2012

Transcription

1 Social Media Issues AHLA Physicians & Hospitals Law Institute February 2012 Kimberly W. Daniel, Esq. Hancock, Daniel, Johnson & Nagle, P.C. Maria Greco Danaher Ogletree, Deakins, Nash, Smoak & Stewart, PC What is it? Social Media Generally, social media means internetbased platforms allowing individuals to communicate, network and share information to anyone viewing or subscribing to the platform. 2 1

2 Social Media Examples: Facebook MySpace Twitter LinkedIn YouTube Blogs Leaving comments in news stories 3 Issues arise: Social Media Personal use by employees on their own social media accounts or other personal postings; Use by employees/other individuals on sites maintained by healthcare companies for marketing purposes; and Use by healthcare companies for recruiting and hiring purposes. 4 2

3 Social Media According to a survey by Pew Research, 66% of online adults use social media platforms such as Facebook, Twitter, MySpace or LinkedIn. 5 Marketing Purposes Social Media Recent Pew Poll showed 66% of American adults look online for health information on a specific disease or medical problem. 6 3

4 Marketing Purposes Social Media More than 1,000 hospitals currently use a major social media outlet such as Facebook, YouTube, Twitter or LinkedIn. Through July 2011, about 660,000 people liked Children s Hospital Boston s Facebook page. More Facebook Friends than any other hospital in the country. 7 Recruiting Social Media According to a Career Builder survey in 2009, 45% of employers use social media sites like Facebook, MySpace, Twitter and LinkedIn to screen job applicants. 8 4

5 Recruiting Social Media Ohio State University Medical Center pilot program using LinkedIn as a recruiting tool. Identify highly-skilled recruits for specialized roles. Instead of an ad, OSCUMC creates a connection to find candidates and let them know of openings. 9 Social Media: Disciplinary Issues Employees disparage the company, supervisor or coworker in a public forum; Employees post confidential or personal health information (or photos) of patients; Employees contact co-workers with unwelcome/harassing personal messages. What action may employers take? 10 5

6 NLRB 11 THE NATIONAL LABOR RELATIONS ACT The NLRA protects associational rights of both union and non-union employees. Section 7 of the NLRA provides in relevant part: Employees shall have the right to self-organization, to form, join, or assist labor organization... and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.... (29 USC 157). 12 6

7 CONCERTED ACTIVITY Concerted activity is any activity by individual employees who are united in pursuit of a common goal. To find an employee s activity to be concerted, the action must be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself. 13 PROTECTED CONCERTED ACTIVITY Activity engaged in for employees mutual aid or protection, or as efforts to improve working conditions and terms of employment is protected under the NLRA. Such activity includes circumstances in which individual employees act to initiate group action, as well as actions by individual employees bringing group complaints to the attention of management. 14 7

8 VIOLATION OF THE NLRA If an employee is engaged in protected concerted activity, an employer may violate the NLRA if: The employer knows of the concerted nature of the activity; and An adverse employment action (i.e., discipline or firing) taken by the employer is motivated by the employee s protected activity. 15 SECTION 8 OF THE NLRA Section 8 of the NLRA (29 USC 158(a)(1)) provides: It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7]. 16 8

9 RETALIATION UNDER THE NLRA An employer s retaliatory conduct against an employee because of that employee s protected concerted activity specifically violates Section 8 of the NLRA. Remedies for unfair labor practices include reinstatement with full back pay plus interest. Employers also are required to post a notice to all employees detailing the violation and the remedy. 17 HOW DOES THIS RELATE TO SOCIAL MEDIA??? 18 9

10 THE FACEBOOK CASES In the past year, the NLRB has increased its focus on social media communications, specifically including Facebook and Twitter. It has focussed primarily on postings that include discussion regarding the terms and conditions of employment. Such activity has been cited by the NLRB as protected concerted activity under Section 7 of the NLRA. 19 HEALTHCARE EMPLOYER UNFRIENDED BY THE NLRB One of the first cases highlighted by the NLRB on this issue involved an ambulance driver s comments on her Facebook page, for which she was fired. That firing led to a charge of unfair labor practices from the NLRB, which designated the postings as protected concerted activity under the NLRA. Settlement of the matter included reinstatement and revision of the company s social media policy

11 MORE FACEBOOK CASES In April 2011, a settlement between the Newspaper Guild and a publishing company avoided a threatened complaint by the NLRB. In May 2011, the NLRB issued a complaint alleging that a Buffalo non-profit violated the NLRA when it fired five employees after they used Facebook to criticize working conditions. The five were reinstated after trial. In July 2011, the firing of a car saleman was upheld, with admonition by an administrative judge that Facebook postings could have been protected activity. 21 NOT ALL FACEBOOK FIRINGS VIOLATE THE NLRA Disgruntled employee/bartender s Facebook postings referenced his customers as rednecks and stated that he hoped they choke on glass as they drive home drunk. The postings were not discussed with other employees, either before or after the posting. An OGC opinion letter stated that there was no evidence of protected concerted activity and that, therefore, the firing of the individual because of his postings did not violate the NLRA

12 NOT ALL FACEBOOK FIRINGS VIOLATE THE NLRA Employee of residential facility for homeless people with significant mental health issues was fired after engaging in a Facebook conversation with a non-employee/friend in which she referred to a client s voices, and made other negative comments about the residents. The OGC pointed out that the employee was not seeking to induce or to prepare for group action related to her job conditions and that her actions were for personal amusement. Her firing therefore was not in violation of the NLRA. 23 WHAT EMPLOYERS SHOULD DO Clearly, the NLRB has increased its focus on social media communications, taking the position that employer policies cannot impose limitations on electronic communications if those postings include discussion regarding the terms and conditions of employment. Based upon that increased focus, employers should take the opportunity to review their social media policies, and to train managers and supervisors to coordinate with their human resources departments any planned disciplinary actions based upon the use of electronic communications, especially if those communications involve personal postings

13 THE WHOLE PICTURE Last year, the U.S. Chamber of Commerce submitted a Freedom of Information Act (FOIA) request to the NLRB, seeking copies of all charges, complaints, and completed settlements related to social media. In response, the Chamber received information going back to 2009 which included 117 charges, 7 complaints, and 5 settlement agreements, and compiled that information into a survey of the NLRB s caseload related to social media. The full survey can be found at 25 Other Legal Issues Arising From Social Media Use Breach of Patient Confidentiality Discrimination and Harassment Defamation Privacy Issues Other business issues 26 13

14 Social Media Journal of the American Medical Association published a survey in % of medical and nursing students polled were found to have made unprofessional postings online that violate patient confidentiality, contain discriminatory language, or present inappropriate sexual references. 27 Social Media Breach of Patient Confidentiality: HIPAA: health care providers must keep individually identifiable health information private and secure, except within specific limited circumstances where disclosure is allowed. Some employees believe that just leaving off the patient s last name is enough (but this is a problem in small communities or where the aggregate information is enough to identify) 28 14

15 Social Media: Patient Confidentiality Nov publication reported that a pediatric nurse posted a photo of a child in a hospital bed on her Facebook page, along with a plea for prayers, as he was to undergo brain surgery. The child, whose first but not last name was mentioned, was not her patient, the nurse said, and the photograph was taken in another hospital. 29 Social Media: Patient Confidentiality Nurse also claimed that the child s mother gave her the photo to post. Would need a HIPAA-compliant, signed authorization Without authorization, the nurse was still bound to safeguard the child s PHI because she was an employee of a Covered Entity, regardless of whether she had a direct treatment relationship with the child

16 Social Media: Discrimination and Harassment Discrimination issues in the hiring process: Employers who search applicants social media sites may obtain information they would not normally find out from a resume or interview (disability, religion, health issues). If the employer decides not to hire the individual, it s best not to have information that he/she could use as a basis for a discrimination suit. 31 Social Media: Discrimination and Harassment Harassment issues can arise when coworkers and supervisors are Facebook Friends. Although many employees would not give a personal address or home phone number to a coworker they do not know very well, they would not hesitate to become Facebook Friends, which can allow for private message conversations

17 Social Media: Discrimination and Harassment Harris v. North Park Clubhouse Lounge Waitress Harris complained to Human Resources when a manager uttered a sexual slur against her. The tavern owner then posted threatening comments on her Facebook page that did not name the waitress, but were clearly directed at her. 33 Social Media: Discrimination and Harassment The waitress co-workers commented on the owner s post with statements like People like [the waitress] should burn in hell. Waitress filed a Charge with the EEOC, claiming that the threatening Facebook posts were retaliation for her original complaint of harassment

18 Social Media: Discrimination and Harassment Yancy v. U.S. Airways, 2011 U.S. Dist. LEXIS (E.D. La. 2011). Customer service agent Yancy filed her first EEOC Charge for sexual harassment after customer service supervisor posted a photograph of her on his Facebook page. Photo showed Yancy hunched over her desk with her underwear visible; she appeared to be sleeping. 35 Social Media: Discrimination and Harassment Yancy complained that the photo showcased at least part of her buttocks and that she was crouched over the desk from the pain of yet-to-be-discovered gall bladder problems. U.S. Airways disciplined the supervisor, but did not discharge him

19 Social Media: Discrimination and Harassment Dissatisfied that US Airways had not discharged the supervisor, Yancy filed an EEOC Charge. She was later placed on suspension for sending a lewd text to a coworker, which she denied. 37 Social Media: Discrimination and Harassment Yancy filed a second EEOC Charge, alleging that she was suspended as retaliation for filing the first EEOC Charge. Yancy was then placed on furlough, and she filed a third EEOC Charge alleging that she was selected for furlough in retaliation for filing her first two charges with the EEOC

20 Social Media: Discrimination and Harassment District court granted Defendant s Motion for Summary Judgment on Yancy s claims of retaliation and intentional infliction of emotional distress. 39 Social Media: Defamation Low & Tritt v. The Pizza Kitchen (Tenn.) Knoxville marketing firm filed a $2 million libel lawsuit against a former client claiming comments posted on social media sites Facebook and Twitter hurt its reputation

21 Social Media: Defamation Marketing firm alleges that the restaurant s owner defamed them in two Facebook entries that said, "Do not EVER use Lowandtritt mktg. firm!" and "CROOKS! - Stolen list, and have tried to pressure me by threat of lawsuit to sign a 'license agreement' to use their mktg materials." 41 Social Media: Defamation The following day on Twitter the owner posted, "Lowentritt mktg firm has done it again..." and "Can you believe that they have not only stolen my list, but have now hacked Pizza Kitchen's facebook page taking it offline?" The posts were published to more than 300 Facebook friends of The Pizza Kitchen and 247 followers on Twitter, according to the suit

22 Social Media Privacy Issues Employers can leave no question that employees have no reasonable expectation of privacy on companyowned computers and electronic devices by so stating in a clear company policy. 43 Social Media: Privacy Issues If Employer allows personal use of company computers and electronic devices and does not have such a policy, employees may be able to show that they have a reasonable expectation of privacy in their personal s, etc. sent and received on those company provided devices

23 Social Media: Privacy Issues For personal employee web pages on social network sites or otherwise the employee may have a privacy interest if the employee has taken reasonable efforts to keep the information private. 45 Social Media: Privacy Issues If employee has a personal webpage that is accessible and open to internet users, the employee has not taken reasonable steps to keep such information private. However, if an employee s personal webpage can only be accessed with a proper password, and he only provides the password to select friends and family, he has taken reasonable steps to keep such information private

24 Social Media: Privacy Issues Stored Communications Act, 18 USC Prohibits third parties from accessing electronically stored communications (like ) without proper authorization. Intended to prevent hackers from accessing electronically stored communications. 47 Social Media: Privacy Issues Example cases: Konop v. Hawaiian Airlines (9 th Cir. 2002). Employee, a pilot, alleged employer airline viewed his secured website in violation of SCA. Pilot maintained a website, in which he criticized the airline, the airline s officers and the union

25 Social Media: Privacy Issues Konop v. Hawaiian Airlines Certain airline employees could access the site with a user name and password, but management was expressly excluded. VP of airline accessed the website with help of an eligible employee. 9 th Circuit held that if the eligible employee constituted a user of the website (meaning he could authorize a third party to access the website), then VP was authorized to access the website and could not be liable under the SCA. 49 Social Media: Privacy Issues Pietrylo v Hillstone Restaurant Group d/b/a Houston s (D.N.J. 2008). The employer viewed employees' internet discussion group critical of the employer by getting another employee's password. Employee felt that if she did not provide her password to employer, she would get in trouble. Employer discharged the employees based on content of the discussion group. A jury found defendant employer violated the SCA and awarded the discharged employees compensatory and punitive damages

26 Pietrylo, cont d. Social Media: Privacy Issues Jury found the employee's authorization was coerced, so the employer's access was unauthorized and its managers improperly accessed the site several times, despite knowing access was restricted. Punitive damages awarded because the jury found the employer acted maliciously in repeatedly accessing the employees' site via the other employee's password. Manager knew access was unauthorized Employee was not told other managers would be given her password or that management would repeatedly access the site. 51 Social Media Other issues when supervisors and subordinates are Facebook Friends. Comments on employee performance on social media ( You are the greatest! ) could be used to counter an employee s discharge for poor performance. Alternatively, negative Facebook comments like He is the worst ever! could be the basis for defamation claims

27 Other Cases Involving Social Media and Business iyogi Holding Pvt. Ltd. v. Secure Remote Support, 2011 U.S. Dist. LEXIS (N.D.Cal. 2011). Plaintiff iyogi and Defendant Secure Remote Support ( SRS ) both provide remote computer technical support services. Plaintiff alleged that Defendant s website contained a blog which contained false statements about iyogi s business. 53 Other Cases Involving Social Media and Business Defendant also operated a website that led consumers to believe it was operated by a neutral third party reviewer, on which Defendants falsely stated the iyogi had an F rating with the Better Business Bureau

28 Other Cases Involving Social Media and Business Plaintiff also alleged that Defendants published false, misleading and defamatory reviews, testimonials and comments regarding Plaintiff's services on other consumer websites (without disclosing the fact that the authors of these negative comments have a material connection with SRS, an iyogi competitor) with the intention of damaging Plaintiff's business reputation. 55 Other Cases Involving Social Media and Business The district court ruled for the Plaintiff on its state law claims of unlawful business practices and unfair competition and false or misleading advertising, federal false advertising claims under the Lanham Act 43(a)(1)(B), 15 U.S.C. 1125; and violation of the Anticybersquatting Consumer Protection Act, under 15 U.S.C. 1125(d)

29 Other Cases Involving Social Media and Business Eagle v. Morgan, et. al, 2011 U.S. Dist. LEXIS (E.D. Pa. 2011). Plaintiff founded a financial services company, Edcomm with two other individuals, and had an account on LinkedIn. She used her LinkedIn account to promote Edcomm s services and bolster her business reputation. 57 Other Cases Involving Social Media and Business In 2010, SISCOM purchased all of the outstanding shares of Edcomm. Initially, all three founders of Edcomm remained employed as Edcomm executives, but within a few months, they were all involuntarily terminated

30 Other Cases Involving Social Media and Business When Eagle tried to access her LinkedIn account later in the day, she could not. Eagle s former assistant, still employed by Edcomm, knew Eagle s LinkedIn password and changed Eagle s account profile so that it would display the new Chief Executive Officer s name and photograph. 59 Other Cases Involving Social Media and Business As a result, individuals searching for Eagle on LinkedIn were routed to a page with the new CEO s photo, but with Eagle s honors, awards, recommendations and connections. Eagle eventually regained control of the LinkedIn account

31 Other Cases Involving Social Media and Business Plaintiff initiated legal action against Defendants, alleging: (1) violations of the Computer Fraud and Abuse Act ("CFAA"); (2) violation of the Lanham Act; (3) unauthorized use of name; (4) invasion of privacy by misappropriation of identity; (5) misappropriation of publicity; (6) identity theft; (7) conversion; (8) tortious interference with contract; (9) civil conspiracy; and (10) civil aiding and abetting. 61 Other Cases Involving Social Media and Business Defendants filed a counterclaim alleging that the LinkedIn account was maintained for the benefit of Edcomm and that Edcomm personnel developed and maintained all connections and much of the content on Eagle s LinkedIn account

32 Other Cases Involving Social Media and Business Defendants contended that Plaintiff wrongfully misappropriated Edcomm s connections on the LinkedIn account as well as her Edcomm cell phone number. 63 Other Cases Involving Social Media and Business Defendants counterclaim alleged: (1) violations of the Computer Fraud and Abuse Act, (2) misappropriation; (3) unfair competition; (4) conversion; (5) tortious interference with contract; (6) violation of the Pennsylvania Uniform Trade Secrets Act, and (8) tortious interference with prospective relations

33 Other Cases Involving Social Media and Business No ruling yet on the Plaintiff s claim(s). Plaintiff filed a motion to dismiss the counterclaims of Defendants. Court ruled: Dismissed the CFAA claims, as well as the claims of tortuous interference with contract, violation of the Uniform Trade Secrets Act and tortuous interference with prospective relations. 65 Other Cases Involving Social Media and Business Court denied Plaintiff s motion to dismiss for the claims of misappropriation, unfair competition and conversion. Court rejected Edcomm s claim that Eagle unlawfully misappropriated a trade secret

34 Other Cases Involving Social Media and Business The LinkedIn connections do not qualify as trade secrets because they are generally known in the business community and are easily derived from public information. 67 Other Cases Involving Social Media and Business But, the court did not dismiss Edcomm s claim that Eagle misappropriated an idea. Court noted that Edcomm alleged that its employees developed the accounts, maintained the connections and contacted instructors and specific personnel within its clients through LinkedIn

35 Policy Provisions and Considerations 69 Policy Provisions and Considerations In a recent survey of 120 national and international companies, 45% of the companies did not have a social media policy

36 Policy Provisions and Considerations Determine the company vision, mission and goals regarding social media. Is the image more traditional or cutting edge? Is the goal to make use of grassroots marketing through YouTube hits and Twitter followers? 71 Policy Provisions and Considerations Determine company s position on use of social media: By employees while in the workplace By employees while outside the workplace By the company during the recruiting or hiring process 72 36

37 Policy Provisions and Considerations Define what is and what is not appropriate social media use. Prohibit false or obscene statements; Prohibit harassing statements or statements disparaging an individual s race, religion, age, sex or disability; Prohibit the posting of any confidential information about patients; 73 Policy Provisions and Considerations Prohibit the posting of any photos of patients on personal social media; Prohibit the posting of photos taken anywhere on company property on personal social media; Encourage employees to post photos of coworkers taken outside of work only with the coworker s permission; 74 37

38 Policy Provisions and Considerations Explicitly state that the policy is not intended to interfere with protected activity or infringe upon employees rights. Prohibit disparaging comments about the company, coworkers or supervisors that are not related to working conditions; 75 Policy Provisions and Considerations Prohibit disclosure of company financial, proprietary or other confidential information; Prohibit use of company trademarks or logos on personal social media. Specify that employees are not to speak for companies on social networking sites or blogs, only for themselves

39 Policy Provisions and Considerations Require supervisors to comment on an employee s performance only as part of a formally established review process, and prohibit managers from any informal review systems on social networking sites or anywhere else. 77 Policy Provisions and Considerations For a healthcare provider s marketing site: use a disclaimer as to medical advice. State that posts by others not affiliated with the provider are their own opinion and not attributable to the hospital; Give notice that the provider may review, edit or remove postings from its social media page

40 Policy Provisions and Considerations Reiterate that the company s harassment and discrimination policies apply to employee s communications on social networking websites. 79 Policy Provisions and Considerations Prohibit any use of employer s data that is unauthorized. Prohibit conduct or statements that are contrary to the employer s business interests. Reflects poorly on employer Damages customer relationships Exposes employer to potential legal liability 80 40

41 Policy Provisions and Considerations Require employees to sign an acknowledgement form that they have received, read and understand the policy. Provide that employees who violate the policy will be disciplined, which may include immediate discharge. Enforce the policy consistently. 81 Questions? 82 41