NLRA affects all Social Media Policies

By: Michelle D. Bayer, Esq.
Cover article featured in Michigan Medical Law Report, 8 M.L.R. 3 (Fall 2012).

UH OH… ANOTHER IMPORTANT ISSUE HEALTH CARE PROVIDERS MUST CONSIDER RELATING TO SOCIAL MEDIA.

By: Michelle D. Bayer, Esq.

Last winter, I co-wrote an article for the MLR entitled “Health Care has Unique Issues in Social Media,” 6 M.L.R. 4 (Winter 2011). That article focused on proscriptions by the AMA and State Licensing Boards regarding the doctor-patient relationship and social media, as well as privacy considerations. In addition to those concerns, all employers, including health care providers, need to be aware of the provisions of the National Labor Relations Act (“NLRA”) which govern the right of employees to self organize and collectively bargain and protects such employees from retaliation for engaging in “concerted activity.”

Most people think of the NLRA as applying only to union settings. However, that is not the case. Recently, there has been an increase in litigation for violations of the NLRA relating to concerted activity in both union and nonunion workplaces. In particular, social media policies and adverse employment action for employee posts and comments on social media sites have become hot legal issues for the National Labor Relations Board (“NLRB”), the agency who enforces the NLRA.

“Concerted activity” is not specifically defined in the NLRA but is generally considered to occur when two or more employees are acting together in furtherance of matters of mutual interest, aid and protection, and include compensation, hours, benefits or improving workplace conditions.

Non-union health care employers have been found guilty of NLRA violations. For example, in Family Healthcare, Inc., 354 NLRB No. 29 (2009), a violation of the NLRA was found when a non-union physician-employee was terminated in retaliation for questioning changes proposed by her health care company employer to the terms of her and her fellow physicians’ contracts that would have resulted in longer working hours and less compensation.

Historically, concerted activity related to verbal or water-cooler type communications. Now, the NLRB has turned its attention to employers’ social media policies and whether such policies result in a “chilling effect” on an employee’s right to engage in “concerted activity” and whether the employees’ conduct through social media is protected “concerted activity.” On August 18, 2011, the NLRB’s General Counsel issued a guidance memorandum on the types of social media conduct that constituted “concerted activity” based on recent cases before the NLRB. Even more recently, on January 24, 2012, the NLRB’s General Counsel issued a second memorandum further detailing the social media requirements, which demonstrates that this continues to be a hot issue.

Health care businesses, like any business, have concerns about protecting their confidential and proprietary information. Health care entities and professionals have additional obligations to protect their confidential patient information as a result of HIPAA and other privacy statutes. Such obligations are usually satisfied through the use of confidentiality agreements, restrictive covenants, and the adoption of company policies and procedures. Due to the prolific increase of social media in our every day life, social media policies have become common in a businesses arsenal of protective policies and procedures.

Now, employers must balance their concerns about their own confidential business and proprietary information and their obligations to protect the confidentiality of protected patient information with their employees’ “concerted activity” rights under the NLRA.

While far from conclusive, the memoranda issued by the NLRB’s General Counsel has provided a starting point for evaluating employers’ non-disparagement and social media policies. The illustrative cases make it clear that overbroad policy provisions prohibiting generally “inappropriate discussions,” “disparaging comments,” “disclosure of inappropriate or sensitive information about the employer or its employees,” “social media posts or pictures which would be embarrassing, harassing, or defaming or which include the company name, logo, address, or product” are potential violations.

However, the General Counsel has not indicated that all such policies be completely barred; instead, recognizing that where legitimate business purposes are being protected, such as those regarding company products or services, clientele, or linked to anti-discrimination and harassment policies, along with a disclaimer “limiting language to inform employees that [the policy] did not apply to Section 7 activity” the policy would likely survive scrutiny.

It is important that any existing social media policies be reviewed by experienced employment counsel and if you do not have a social media policy, you should consider having one added to your policies and procedures which have been prepared and reviewed by an employment law specialist.

While concerted action regarding wages, hours, or terms and conditions of employment are protected, there are limitations. Obviously, posts that would constitute unlawful harassment, or which would divulge propriety trade secrets, or which violate the confidentiality requirements of HIPAA or would be inappropriate communications regarding patient treatment need to be addressed. However, you should consult with an experienced employment law specialist before taking any disciplinary action to ensure that you do not find yourself in violation of the NLRA.