Social Media & Labor Law

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 21^st 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.

There is a misperception, based partly on charges brought by the NLRB against AMR, that employers can’t hold employees accountable for anything they say on Facebook, but this is not true. In the settlement with AMR, the NLRB only required the company to review its policy (which it called “overly-broad”) to ensure that it does not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work. AMR agreed that it would not discipline or discharge employees for engaging in such discussions. The fired employee was not reinstated. This case was about fixing the policy, not about this one employee’s termination.

However, an administrative law judge recently reinstated some employees for complaining to each other about their jobs on Facebook, so managers should be careful. Some discussions that put your company in a bad light can be protected by law. Your policies (and any discipline) should be based on specific standards of behavior (such as profanity, disrespect or harassment), not on whether employees are speaking critically about their working conditions.

In the past year, about a dozen cases before the NLRB have been based on employers' reaction to how employees talked about their jobs on social media. As expected, the Board’s analysis focused on what they said, not where they said it. If you think of Facebook as a room and Facebook friends as people in the room, the labor law protects conversations employees have with coworkers in this room about terms and conditions of employment, but not comments they shout out to everyone in the room about themselves, their jobs or what they think of their employers.

This protection under the NLRA applies to all U.S. employees, not just those in a unionized work place. So even managers who otherwise have never dealt with the NLRB have to know what employees are allowed to do or say under the law. Adding Facebook, Twitter, blogging or commenting to the mix does not change the law. If an activity would be protected if done in person, it stays protected if it happens online. If the activity is not protected by law, putting it on social media does not protect it.

Using Your Power for Good

What makes the use of social networking sites so powerful is that the communication is immediate, and the receivers of your message can replicate and spread it like a virus at virtually no cost or effort to the person passing the message along. If bad news travels fast, what about good news? There are many examples of EMS agencies using social media to engage their employees, communities and colleagues in a conversation leading to better communication and relationships. This is where an organization needs a social media policy, establishing who gets to blog or tweet in the company’s name, who administers the Facebook page, what standards they must meet and what goals they should be pursuing.

Keep in mind that anything your agency puts on the Internet is public information, and it will be there forever. It is very difficult to “unpublish” something once it’s out there, because so many people or services are archiving, bookmarking, indexing and backing up information published on the Internet. You should proofread everything you publish. The speed of social media only works in your favor if the person monitoring and posting has the authority and self-restraint to have conversations in real time without causing concern among executive management that he might violate the social medial policy or misrepresent some key fact about operations or company policy.

There are a lot of positive examples of how to use social media to improve your agency’s image or relationship with the public. This can also counteract any bad press from employees who do not present themselves on line professionally. If your agency is considering establishing a presence in any social medial networks, take time to review how other agencies do it. Emulate the good ones, and consciously avoid the missteps of the weaker ones.

Conclusion

Under the NLRA, employers can hold employees accountable for what they say publicly, even if it is done online on a social media site. The same laws apply as those for spoken words. This article is focused on labor law, but there are specific privacy laws in various states, other laws for spying or wiretapping, and additional considerations for government employers. This is not legal advice, but is meant to inform managers how the NLRB evaluates complaints about how employees are treated for what they say on social media. If you have a specific question, consult your attorney.

References

1. JT's Porch Saloon & Eatery Ltd., NLRB Div. of Advice, No. 13-CA-46689, 7/7/11.

2. Martin House, NLRB Div. of Advice, No. 34-CA-12950, 7/19/11.

Margaret Keavney is general counsel for MONOC Mobile Health Services.