Social Media & Labor Law

Does your organization have a social media policy?


This is part of a series of articles from MONOC Mobile Health Services, New Jersey's largest provider of EMS and medical transportation and first CAAS-accredited agency. The goal of this series is to provide insight and solutions for the different managerial and operational challenges facing the EMS leaders of tomorrow. For more, see www.monoc.org.

In addition to managing scenes, inventory and protocols, EMS managers have to manage people. This is an aspect of business our industry shares with every other. Managers of fast-food restaurants or accounting firms may not have much in common with us when it comes to operations and equipment, but they manage people the same way we do. And people are social. In the 21st century, they use social media, and we need to think about how to manage that.

Focus on the Message, Not the Medium

Does your organization have a policy about employees’ use of social media? An employee behavior policy might not use the words “social networking" or “Facebook,” but it still sets the standard to which employees are held. The important thing you have to manage is the message, not the media. In other words, if something is not acceptable to be said in public, it would not be acceptable if written on Facebook either. If you would not have a problem with something an employee said at a party, why would that same comment cause a problem on the Internet? Don’t get too caught up in the medium used to communicate. Focus on what people are saying and how they are affecting the public’s perception of the profession, your agency and themselves as EMS professionals.

People who are disciplined for what they post on Facebook claim protection under several types of law, including the First or Fourth Amendment of the U.S. Constitution, and state or federal laws protecting privacy, off-duty behavior and other context-specific protections. In this article, we will only discuss cases involving charges that the employer violated the National Labor Relations Act (NLRA).

The National Labor Relations Board (NLRB) has been evaluating claims that employers are inappropriately disciplining employees for things they post on social media sites. The Board and its Division of Advice are looking at the content of the postings to determine if the employers’ sanctions of these statements violated the National Labor Relations Act. The NLRA prohibits employers from interfering with employees' right to engage in “protected concerted activity,”  which is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. In one case, the NLRB’s associate general counsel found that a bartender’s Facebook conversation with his sister about how he had to do the waitresses' work without tips and that the customers were rednecks was not protected activity.1 It was the conversation that was the focus of the analysis, not where the conversation took place.

Likewise, in a healthcare-related case, the NLRB’s counsel accepted the termination of an employee for posting on Facebook while working the night shift in a mental hospital.2 A former patient saw her posts about how spooky it was and that residents were hearing voices. He complained to the hospital, which fired her for using working time for personal conversation and for inappropriate comments about residents that showed she was not “recovery-oriented.” Since her Facebook posts did not even mention terms and conditions of employment, and none of her Facebook friends were co-workers, counsel concluded that her claim that the termination violated the NLRA was unfounded. Again, it was her actual words and attitude, not her use of Facebook, that got her fired.

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