The saga of Facebook firing cases continues. In this episode, a non-profit organization operating after school programs for high school students terminated two employees who engaged in an extensive Facebook trash talk session about their employer, screen shots of which were sent to Human Resources. (See NLRB v. Richmond District Neighborhood Center.) After the employees were terminated, they filed an unfair labor practice charge with the NLRB.
Interestingly, the employer actually prevailed in this case and the administrative law judge found that the Facebook posts were not protected under the National Labor Relations Act. Here’s a sampling of the posts between the two teen center employees:
Moore: U goin’ back or no??
Callaghan: I’ll be back, but only if you and I are going to be ordering shit, having crazy 10 events at the Beacon all the time. I don’t want to ask permission, I just want to be LIVE. You down?
Moore: I’m goin’’’ to be a activity leader I’m not doing the t.c. [sic] let them figure it 15 out and they start loosin’ kids I ain’t help’n HAHA
Callaghan: ha ha ha. Sweet. Now you gonna be one of us. Let them do the numbers, and we’ll take advantage, play music loud, get artists to come in and teach kids how to 20 graffiti up the walls and make it look cool, get some good food. I don’t feel like being their bitch and making it all happy-friendly middle school campy. Let’s do some cool shit, and let them figure out the money. No more Sean. Let’s [f*&^] it up. I would hate to be the person taking your old job.
Moore: I’m glad I’m done with that its to much and never appreciated so we just go be have fun doing activities and the best part is WE CAN LEAVE NOW hahaha I AINT GON BE NEVER BE THERE even tho [sic] shawn gone its still hella stuck up ppl there that don’t appreciate nothing.
Callaghan: You right. They don’t appreciate shit. That’s why this year all I wanna do is shit on my own. Have parties all year and not get the office people involved. Just do it 35 and pretend thay [sic]are not there. I’m glad you aren’t doing that job. Let some office junkie enter data into a computer. Well make the beacon pop this year with no ones help.
Moore: They gone be mad cuz on Wednesday I’m goin’ there add tell them my title is ACTIVITY LEADER don’t ask me nothing about the teen center HAHA we gone have hella clubs and take the kids
Callaghan: hahaha! [F*&^] em. Field trips all the time to wherever the [f*&^] we want!
Once the organization learned of these posts it was understandably upset – what would the parents of the teens who attended the program think – not to mention program funders? And how could they trust these employees to do their jobs?
These were the arguments the organization made in its defense to the employees’ unfair labor practice charge. They argued that the Facebook posts were so “egregious” that they went beyond the bounds of what is protected under the NLRA. And the ALJ agreed with them, finding that the fact that the organization believed that the Facebook comments jeopardized the program’s funding and the safety of the youth it served meant that the employer “could lawfully conclude that the actions proposed in the Facebook conversation were not protected under the Act and that the employees were unfit for further service.”
So, a victory for the employer. But what does that mean for other employers facing situations where employees bad mouth the organization on Facebook or other social media sites?
We still think that any time an employer is considering terminating an employee based on the employee’s social media activity, the employer needs to carefully consider whether the posts might be protected and consider seeking legal counsel for assistance in wading through these tough issues. What are your thoughts?
The texting/tweeting scandals just keep coming – and once again this one is all true. This unfortunate episode comes from the Coatsville Area School District in Pennsylvania. The scandal highlights technology, ethics and employment issues, as well as the complexities that IT staff must navigate when dealing with evidence of alleged immoral and illegal activities on company-owned devices. In this first post, we will look at the issues businesses face when employees engage in nefarious activity on company-owned electronic devices.
So, let’s take a look at some of the facts. The Coatesville, Pa., School District Superintendent Richard Como and Coatsville Area High School Athletic Director Jim Donato recently resigned following the disclosure of their inflammatory texting conversation. The pair had exchanged a myriad of racist and sexist slurs directed at students, faculty, and administration officials on district-owned cell phones. In one appalling exchange, Como and Donato used fourteen slurs using the “n” word. In another text, the pair allegedly discussed financial misdealing within the district and monetary kickbacks.
The district’s IT Director (Hawa) discovered the racist slurs while performing a routine data transfer on Athletic Director Donato’s district-owned cell phone. Mr. Hawa reported the incident to the district’s deputy superintendent, and then to the district’s attorney. News reports confirm that Hawa ultimately sent the transcript to the Chester County District Attorney after he became concerned that some Coatsville school board members and their attorney were attempting to cover-up the texting scandal. See Daily Local News, Coatsville school officials sighted at courthouse, dailylocal.com, October 18, 2013. The District Attorney initiated a grand jury proceeding into the texting scandal, the alleged financial kickbacks, and other alleged improper activities of the school employees. See abclocal.go.com, Grand jury investigation into Coatsville texting scandal, October 15, 2013. The NAACP also conducted its own hearing into the incident revealing additional claims that the district discriminated against low-income and minority families, as well as disabled children. The NAACP plans to investigate the claims made at the hearing for possible legal action against the district. See philly.com, Coatsville school board denies accusation of bias, October 18, 2013.
So, what are the lessons learned from this scandal? First, there are lessons for anyone who uses social media, electronic devices, etc.:
- In the digital age, everyone must understand that electronic communications will NOT remain private.
- Emails and texts – whether good or bad – do not disappear. As discussed in prior posts, forensic experts can often easily retrieve “deleted” information from a cell phone or computer. If you would not say what you are saying in front of a judge (or your grandmother) – don’t post it!
- Don’t use your work provided device as if it were your own device. As happened here, what happens if you turn in that device for a routine data transfer? What will someone find? Company officials and IT staff – under appropriate policies and procedures – will have the right to investigate information contained on company-owned cell phones and computers. Employees must understand that even though they might be permitted to use a company-owned device for business and personal purposes, that device, and the content on that device, still remain the property of the business.
Second, there are important lessons for private and public corporate entities:
- Implement policies and procedures that permit you to monitor, inspect and act upon inappropriate text messages or interactions.
- Implement policies and procedures that outline the circumstances and procedures for reporting alleged illegal activities. These policies could spell out the appropriate chain-of-command for reporting this activity, as well as the individual in the organization who has the authorization to discuss company matters with outside law enforcement officials.
- Implement policies and procedures on appropriate and inappropriate use of company provided devices. Then, train your employees on what that means – clearly not everyone understands this concept yet.
Third, evidence obtained from a company-owned device might be used in a termination decision, however, there could be consequences beyond loss of employment for inappropriate text messages:
- For example, the former Coatsville Superintendent may find out his conduct might negate the school district’s obligation to pay-out his retirement pension. I bet that Como never thought that his texts with the Athletic Director could ever jeopardize his reputation, career, and ultimately his retirement pension.
- Depending on the content of the inappropriate exchanges, district attorneys could use employee text messages to prosecute employees or their employers under criminal statutes. Just think of what may face the Superintendent – “Theft by deception or extortion, theft of services, tampering with public records or information, are a few stated crimes listed under the forfeiture act that could cause Como to forfeit his pension.” See Daily Times News, delcotimes.com, Former Coatsville schools chief at center of racist text saga files for pension, November 6, 2013.
- The EEOC, local departments of human rights or the NAACP may use those text messages to support claims of discrimination, retaliation or unequal treatment against the employer.
In short, employees need to exercise some modicum of restraint in their communications. Employers, knowing that employees may not do so, need to have policies in place to respond to inappropriate and possibly illegal conduct by employees. Are you prepared?
You really can’t make this stuff up. The story sounds like the plot of a D.C. beltway suspense novel – senior White House director involved with national security and Iranian nuclear negotiations caught and fired after anonymously leaking sensitive national security information, and lobbing insults at Capitol Hill, White House staffers and politicians via Twitter. The abrasive tweets criticized government policies, and even the actions of the director’s boss, the President of the United States. But someone did not make it up…sadly, it is all true. See White House Official Fired Over Anonymous Tweets, Reuters.com, October 23, 2013.
Jofi Joseph, was the director of nuclear non-proliferation on the White House National Security Council staff. But his employment was terminated after the government discovered that for two and a half years, Joseph anonymously posted hundreds of the blunt tweets like those outlined above. According to news reports, Joseph described himself in his Twitter bio as a “keen observer” of national security, noting that he was unapologetic for saying what others only thought (the Twitter account has since been shut down). See White House Staffer Fired for Tweets Criticizing Bosses, NBCWashington.com, October 23, 2013. The White House confirmed Joseph’s termination.
So have these highly publicized terminations deterred employees from posting negative comments regarding their employers? Probably not. Yet, the lesson from this recent termination (and so many of those in the past) is that even an employee’s anonymous posts can be uncovered and have a significant negative impact on that individual’s job security and reputation. In this day and age, individuals should not rely upon the supposed anonymity of the internet to protect their identities. As an aside, Joseph’s antics could also impact others… Joseph’s wife is currently employed in a high profile job on Capitol Hill. I wonder whether Joseph had any thought about how his actions might affect his wife’s career. Whether he thought about it or not, the circumstances surrounding his termination might affect how others view his family. When conducting training on social media use for employees, I always caution employees to consider all the ramifications of their actions before proceeding down the road of negative posts. This situation certainly highlights why this guidance is important.
From an employment perspective, companies should consider how their social media policies handle employees’ negative posts or, more importantly, the leak of sensitive information. Employers should consider having procedures in place to investigate and address potentially damaging posts. As you all know from past posts, certain laws, e.g. the National Labor Relations Act, may protect employees for negative comments on the internet (see A Reminder to Avoid Prying Into Private Group Facebook Pages!) but not all employee posts are protected. Employers should be prepared to act on those that are not – particularly if the posts contain confidential information.
Have you ever personally posted something you later regretted, or have you had to address negative employee posts in the workplace? Do you have the policies and procedures in place to handle these situations? As always, we welcome your insight.
Do private Facebook wall posts fall within the protection of the Federal Stored Communications Act (“SCA”)? The United States District Court of New Jersey ruled they do in Ehling v. Monmouth-Ocean Hospital Service Corp., Civ. No. 2:11-CV-03305 (WJM) (Aug. 20, 2013). So what is the SCA and how could the Court’s ruling affect your HR decisions?
Here is the case in a nutshell. Plaintiff Deborah Ehling, a registered nurse and paramedic, frequently posted comments and photos to her Facebook wall – a wall that limited access to only her Facebook friends. Plaintiff was not shy with her comments. For example, after a shocking shooting in Washington D.C., Plaintiff posted the following:
“[a]n 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning killing an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards ….. go to target practice.”
Plaintiff’s employer, Monmouth-Ocean Hospital Service Corp. (“MONOC”), received a copy of the post from a co-worker and Facebook friend. As many of you likely know – most employers learn about employee Facebook posts because their so-called “friends” turn them in.
After receiving the post, MONOC suspended Plaintiff with pay stating her comments reflected a “deliberate disregard for patient safety.” Plaintiff filed a complaint with the National Labor Relations Board (“NLRB”). The NLRB found MONOC did not violate the National Labor Relations Act, and that no privacy violation occurred as the post was sent unsolicited to MONOC management.
MONOC ultimately terminated Plaintiff for other disciplinary violations, unexcused absences, and her failure to return to work after numerous FMLA leaves of absences. Ehling then filed suit in federal district court alleging, among other things, that MONOC violated the SCA, and the common-law claim of invasion of privacy for inappropriately accessing her Facebook post.
So, let’s step back a minute. What does the SCA do? The purpose of the Act is to protect information that a “communicator” meant to keep private. The SCA applies to: (1) electronic communications; (2) that were transmitted via an electronic communication service; (3) that are in electronic storage; and (4) that are not public. Given this, the Ehling Court ruled that Facebook posts configured to be private – not open for general public viewing – met all four criteria. “The Court note[d] that when it comes to privacy protection, the critical inquiry is whether Facebook users took steps to limit access to the information on their Facebook walls.”
Although Ehling chose to keep her Facebook wall private, and hence her posts were covered under the SCA, the Court determined the “authorized user exception” applied. The authorized user exception applies where (1) access to the communication was “authorized,” (2) “by a user of that service,” (3) “with respect to communication … intended for that user.” Each prong of this exception was met in the Ehling case. Access to Ehling’s Facebook posts was “authorized” as her co-worker voluntarily – without solicitation or coercion – provided copies to management. The co-worker was also a “user” under the exception as he had a Facebook account, and Plaintiff had friended him. Plaintiff intended her Facebook rants to be viewed by her friends – including all of her Facebook friends at work. The Court, therefore, dismissed Ehling’s claims under the SCA. Interestingly, Ehling’s common law claim for an invasion of privacy into her Facebook account also failed. The Court, just as with the SCA claims, found that there was no intentional intrusion into her Facebook account.
So what might an employer learn from Ehling v. MONOC? First, at least one court found that an employee’s private Facebook posts fell within the protection of the SCA, and that accessing them without authorization might open up the employer to liability. Second, how management accesses, or receives copies of, the employee’s Facebook post matters. If management solicits, or coerces, an employee to provide copies of, or access to, another’s Facebook posts, or asks the employee to login to Facebook to view the other employee’s account, the SCA exception might not apply – the access might not be “authorized.” But if, as in Ehling, a co-worker voluntarily provides information to management without strings attached the access might fall within the “authorized user” exception.
This case should remind all Facebook users to think about who their Facebook “friends” are…would your “friend” turn you in to an employer for a thoughtless Facebook comment? Food for thought.
Do school districts need help with monitoring students’ social media behaviors to prevent bullying, threats, acts of violence and self-harm? Several districts believe so. Following a pilot program, Glendale Unified School District in Glendale, California recently hired Geo Listening to monitor and report on the cyber-activity of over 14,000 middle and high school students.
According to Geo Listening’s website, their mission is to “provide more timely and relevant information to school administrators so they can better intervene in the lives of children.” The company’s monitoring service analyzes and reports on the social media activity of students from their public posts. Geo Listening then provides a daily report of conduct such as bullying, cyber-bullying, despair, hate, harm to self or others, crime, vandalism, substance/drug abuse, and truancy. What to do with the monitored information is then left to the discretion of the school district. Geo Listening simply hunts and gathers for the data. Despite this, the program has raised some concerns over privacy and free speech rights by students.
Yet, school districts do not provide a list of students to Geo Listening. Rather, the company uses “deductive reasoning to link public accounts” to the students. LA Times, Glendale district says social media monitoring is for student safety, (Sept. 14, 2013). Geo Listening declined to articulate what that means and how that is accomplished. However, if the school district does not provide student names to Geo Listening, or reveal private confidential information in the monitoring process, then the district is not likely violating any privacy laws. Indeed, many employers hire companies to review public social media posts of applicants or employees. (See More Risks to Job Applicants with Questionable Social Media History – where we talked about Social Intelligence, a company which performs social media background checks on applicants for employers).
Geo Listening also contends it does not violate student privacy – it neither hacks into students’ accounts nor peeks into private communications or emails. According to Geo Listening, the students themselves make the information public – the company simply monitors where and what kids communicate. “Parents and school district personnel – they are not able to effectively listen to the conversation where it’s happening now,” Geo Listening CEO told CNN, California school district hires firm to monitor students’ social media, (Sept. 15, 2013). Geo Listening believes its service bridges this communications gap without violating any privacy or free speech rights.
In the end, despite the criticisms and questions – has monitoring Glendale’s students helped? Superintendent Richard Sheehan certainly believes that the monitoring will assist the district in providing a safer environment for students. Recently, the district was able to intervene on behalf of a student who had expressed a desire on social media to end his life, and to date, the district has not commenced any disciplinary action for conduct reported under the monitoring program – even against a student who posted a photo of himself holding what turned out to be a fake gun. Sheehan’s staff simply talked with the student’s parents about the dangers of posting those types of photos online. See, CNN, California school district hires firm to monitor students’ social media, (Sept. 15, 2013).
What do you think? Should school districts look at all student behavior – in and out of the classroom? As we have discussed previously, social media platforms are public venues. Information disclosed is no different than carrying on a conversation in a public place. Regardless, when, how and why we look at that information becomes an important question to ask. How would this apply in the employment context? Should employers be monitoring the communications of its employees online – and what information would employers be looking at? As always, we welcome your input.
Does clicking the “Like” button on Facebook amount to protected speech under the Constitution? According to a ruling on Wednesday from the Fourth Circuit, yes, it does. In fact, according to the Court, “it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”
The Court’s decision in Bland v. Roberts doesn’t have any direct impact for private employers because it solely deals with the First Amendment rights of a group of public employees’ from the Sheriff’s office in the City of Hampton, Virginia. However, we have been waiting for this ruling to see how the Court viewed the legal impact of “liking” something or someone on Facebook. We wondered whether the Court find that one mouse click equates to conduct that is protected under the law?
So, let’s take a look at the background of this case. The dispute arose because a group of employees refused to support their boss – the local Sheriff – in his reelection campaign and instead expressed support for his opponent. According to the employees, that support cost them their jobs. After the Sheriff won reelection, he refused to reappoint the employees and they sued claiming the Sheriff violated their First Amendment right to free speech.
The employees expressed their support for the other candidate in various ways, but the one that interests us is the employee who “liked” the opposing candidate’s Facebook page. Prior to the appeal to the 4th Circuit, the district court had found that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.”
But the Court of Appeals disagreed noting that when the employee clicked “like”, several additional things happened. First, the candidate’s campaign page’s name and a photo of the candidate were added to the employee’s profile, which other Facebook users could view. Additionally, Facebook issued a notification that the employee liked the candidate’s campaign page, and the employee’s name and profile photo were added to the candidate’s campaign page’s “People [Who] Like This” list.
The Court held that the fact that “a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.”
Several things about this case interested me. For example, how will this case be used in other legal contexts? Presumably, the National Labor Relations Board will jump on this case to support the notion that “liking” something on Facebook constitutes protected concerted activity. Additionally, there was such a stark contrast in how the district court thought about a Facebook “like” versus the Court of Appeals – how will other courts view similar activity?
The district court seems to have focused on the mechanics – liking is just clicking a button – but the Court of Appeals really dug into the implications of that mouse click, engaging in a multi-page analysis of “what it means to ‘like’ a Facebook page.” Reading, in a court opinion, a lengthy explanation of how Facebook works, what users do to log on and create a profile, etc. is rather amusing since much of what the Court included seems so obvious to the rest of us, but I give them credit for taking the time to do a careful analysis.
What other actions on Facebook might be considered protected under various laws? What about being “tagged” in a photo at a political event or a fundraiser – would that be enough to show an employee’s support for a particular cause? It will be interesting to see how this all unfolds. As always, if you have any thoughts, please share them with us.
Does a candidate’s social media profile help or harm the candidate’s chances of landing a job? According to a recent survey by CareerBuilder, it is, perhaps not surprisingly, more likely that a candidate’s social media activity will have a negative, rather than a positive impact, although that’s not always the case.
According to the survey, 39% of companies use social media sites to research job applicants. Of those, 43% said they have found information that caused them not to hire someone, while only 19% said they had found something that positively impacted hiring decision.
What makes the difference? The top reasons for not hiring a candidate based on their social media profile include some of the “usual suspects.” Fifty percent of those who decided not to hire someone based on the individual’s social media profile did so because the candidate “posted provocative/inappropriate photos/info.” 48% discovered information showing the candidate drinking alcohol or using drugs, and 28% reported finding the candidate had made discriminatory comments relating to race, gender, religion, and other protected classes. Additionally, 33% found that the candidate had bad-mouthed a previous employer.
And what might make a positive impact? The survey found that hiring managers who found something positive on a candidate’s social media profile that caused them to hire the candidate included things like the candidate demonstrating a “professional image,” “great communication skills,” “creativ[ity]” and similar items.
The survey includes some interesting data on the impact a job applicant’s social media profile can have on hiring decisions. What would also be interesting to know is how many employers who are using social media to vet job applicants are taking precautionary measures to make sure that protected information (like race, sex, age, disability, pregnancy, religion, etc.) is not clouding their judgment.
Are you using social media to vet job applicants? Have you found that doing so has a positive or negative impact on your hiring decisions?
We have written on a few occasions about how courts have viewed discoverability of social media posts and what might be a reasonable request for information contained on a social media site (see e.g. Can the Court Force You to Turn Over Your Facebook Account? The Short Answer. Yes). The Federal District Court, Northern District of Georgia, recently issued an interesting decision on this issue and it is worth a deeper dive.
Jewell v. Aaron’s, Inc., Case 1:12-cv-00563-AT (N. Dist. Ga, July 19, 2013), is a class action lawsuit involving claims that the defendant failed to provide breaks to its employees. The defendant requested social media posts from the opt-in plaintiffs, and the plaintiffs had refused to produce them. The request was laid out as follows:
Request for Production No. 4: All documents, statements, or any activity available that you posted on any internet Web site or Web page, including, but not limited to, Facebook, MySpace, Linkedln, Twitter, or a blog from 2009 to the present during your working hours at an Aaron’s store.
The defendant made the Request because it had received an anonymous tip that the named Plaintiff often made posts on Facebook during work hours. The discovery request was designed to find out whether and/or how many of the sample opt-in plaintiffs engaged in similar conduct.
The defendant provided the following rationale for its request:
[g]iven the prevalence of social media today and the ability to post on personal social media accounts and blogs from personal smart phones, it is likely that many of the opt-in plaintiffs have made posts … Some of the posts may directly show that the poster was taking a lunch break at the time. The date and time stamp of other posts may indicate that the poster spent a chunk of 30 minutes or more during the work day engaged in a series of successive personal posts such that there is a 30 minute period of that opt-in plaintiff’s work day that, regardless of whether the opt-in plaintiff actually ate a meal, is appropriately excluded from the compensable time of that opt-in plaintiff.
This seems like a fairly tailored request. It also appears that the defendant articulated a reasonable rationale for seeking the information given the known use of social media by employees during the work day. The plaintiffs, however, argued the Request was overly burdensome and that it would take 1,323 hours to 26,462 hours to locate and produce the information from the 87 opt-in Plaintiffs’ social media sites.
On review, the Court attempted to verify the accuracy of Plaintiffs’ assertions that it would take so much time and discovered a Facebook feature which permits users to “download Facebook data, including “timeline” information, “wall” postings, activity log, messages, and photographs” directly from Facebook. Following the download, the user can view all posts/activity in a single document in chronological order with a date/time stamp.
Seems like a pretty simply process – but the Court disagreed and refused to compel production of the social media posts. Given the Court’s analysis about the ability to download data from Facebook, I decided to investigate a little further myself to see how easy or difficult this process might be. I accessed my Facebook account, found the link to “download” my data and obtain an archive of my information. I started and completed the process in less than three minutes. Facebook is archiving my data as I write. As a result, I have to question Plaintiffs’ counsel’s assertions that it would take between 1,323 hours and 26,462 hours to download, review and produce the Facebook posts from only 87 people. I admit, however, that I have yet to receive an email notification that my archived data is available – so we will see.
That said, this Facebook feature should make it easier for litigants to gather and produce relevant information from Facebook, and might also decrease discovery costs – should other courts take a different view about the relevance of the data, and the ease with which the data can be collected. I can certainly see this issue coming up in employment litigation on a fairly regular basis, so we will keep our eyes open for other decisions on these issues.
Have you had an experience with production of social media posts? If so, we welcome your input!
In a recent post, Should Healthcare Professionals Sue to Protect Their Online Reputations?, we discussed several cases where physicians have sued over posts made in an online forum. Legal challenges to negative reviews have had mixed results. Remember David McKee, M.D. – one of the doctors we discussed in our last post who sued a patient’s son over his online posts. The negative online reviews were posted in the spring of 2010, but the Minnesota Supreme Court did not rule until January 2013 that the statements were not defamatory, and thus, his claims had been properly dismissed.
So – what other options are there? Some suggest that health care professionals should embrace online reviews. The Center for Quality of Care Research in 2010 conducted a survey of 33 physician-rating websites which rated 81 physicians. Of the 190 reviews surveyed, 88% were positive, 6% negative and 6% were neutral. Similarly, Tom Seery of Realself.com, an online review and comment board for cosmetic treatments, found that 90% of the patient reviews on Realself.com were positive, with a small mix of negative reviews and a smaller number of mixed reviews. Dr. Steve Feldman, a practicing dermatologist, professor of dermatology, pathology and public health sciences at Wake Forest University, and founder of a doctor rating site, Drscore.com, could not agree more. Dr. Feldman told Physicianspractice.com, Do Online Ratings Matter?, “[t]hese Web sites are actually one of the best things ever to happen to American Medicine.” Dr. Feldman believes medical rating sites give satisfied patients an avenue to describe in positive terms the care and treatment they received. Indeed, the median score of a doctor with 20 or more reviews on Drscore.com is 9.3 out of 10. “Patients love their doctors,” says Dr. Feldman. “It’s amazing how good doctors are in the United States and no one knows it.”
I would agree with Dr. Feldman that social media provides patients the ability to praise their doctors, and that the praise might help boost their physician’s practice. But what about the nearly 10 % of negative reviews – can and should a doctor respond in an online forum? Physicians should first look at the content of many of those negative reviews. According to doctoredreveiws.com, How to Respond, the most common patient complaints relate to the physician’s business practices, such as parking, wait times and staff attitude. This is information that many practices would welcome and take steps to correct! This kind of review may also provide the practice the opportunity to respond and let the reading public know that the practice will listen to patient complaints and take affirmative action to improve the quality of the patient’s experience.
That said, it is usually the online posts about direct patient care that causes concern among health care providers. Yet, in those instances where the negative criticism relates directly to patient care, and thus, implicates a patient’s privacy, the health care professional must step back to determine whether an online response is necessary and appropriate, or perhaps whether reaching out to the patient is the best bet. While the online site may require the reviewer to waive privacy constraints prior to posting the review, this might not insulate the physician. We recommend contacting legal counsel to insure that such a responsive post would not violate either state or federal patient privacy laws. If a negative review persists, the clinic or doctor might try contacting the patient directly - asking about how the concern can be remedied and ultimately whether the patient will take the negative review down. A final option might be to contact the review site. The review site might refuse to take the post down, but if the information is clearly false, inflammatory or appears to be for the purpose of harassment, the review site might respond to a plea to remove the post (although they don’t have to do so).
So can a health care professional take charge of his/her online presence? Dr. Kevin Pho, a New Hampshire internist and writer of a physician-focused blog on health and social media called KevinMD.com, believes legal action is the wrong approach in curbing negative online reviews. “In general, I can’t think of a time where a lawsuit would be tremendously effective. The negative publicity and the fallout from the lawsuit is far worse than the initial issue,” Dr. Pho reported to American Medical News, Doctors’ legal remedies can defeat online attacks. “It’s a better idea to take charge of your online presence.”
For instance, Dr. Pho believes physicians should join social networking sites, such as Facebook, LinkedIn, and also participate in community health boards, blogs and chat rooms. According to Dr. Pho, a physician’s online efforts will show-up first during a Google search of his/her name, thereby pushing any negative reviews down the list. This is certainly how many industries increase social media presence, so it seems reasonable for health care professionals to do so as well. Although I would add a caution that health care professionals should exercise extreme care when interacting with patients in an online setting (think patient privacy).
So what is the right answer? In the end the best bet may be to do nothing – at least as it relates to online criticism. As I advise clients in other industries – get a thick skin and don’t respond to criticism unless really necessary. If a response is appropriate, consider reaching out to the patient directly. Perhaps this is a little old-fashioned, but direct communication can resolve disputes better than online barbs. Finally, if you are a health care professional, take an active role in your online reputation to increase the number of positive “hits” the public might find about you or your practice. If any of you have other ideas for health care professionals, please contribute your thoughts.
Starting this week, we are very pleased to share with our readers a series of guest posts by three of Fredrikson & Byron’s talented summer associates. Here is the first guest post, by summer associate, Chad Ambroday.* Thanks, Chad, for the post!
In a recent Facebook firing case, the employer, SkinSmart Dermatology, discharged an employee after she dared her supervisors to fire her in a Facebook group message. The employee, along with nine other current and former coworkers, initially created the forum to plan a social event. Only the ten individuals invited to the group could view the conversation. The first hour of their conversation focused on planning the event, but their exchange then digressed into banter about the workplace.
The employee boasted about one interaction in which she told a supervisor to “back the freak off.” A few minutes later, the employee heightened the degree of criticism, stating that her supervisors “are full of sh** . . . They seem to be staying away from me, you know I don’t bite my [tongue] anymore, F*** . . . FIRE ME . . . Make my day . . . .”
The conversation fizzled out as nobody responded to the employee’s comments. The only contribution came approximately two hours later after the employee stated that there was no one left in the group message to entertain her. A current coworker replied that she made the employee laugh and then mentioned that “it’s getting bad there [at the Employer’s workplace], it’s just annoying as hell. It’s always some dumb sh** going on.” The conversation ended shortly thereafter.
The next morning, as happens so often in these cases, a coworker showed the message string to a supervisor. The clinic fired the employee, citing doubts about her commitment to her job and concerns about her interactions with patients as the basis for her termination.
The employee then brought an unfair labor practice charge, alleging that her Facebook posts constituted protected concerted activity under Section 7 of the National Labor Relations Act. The case was submitted to the Office of the General Counsel, which found that the Facebook posts were not protected concerted activity because the employee’s statements merely reflected her individual contempt for the workplace and no other coworkers joined in the criticism.
While we were happy to see that the employee in this case was not able to use the National Labor Relations Act as a shield behind which the employee could freely denigrate her supervisor, the case raised a larger, more practical question – were the posts really so bad that it was worth having to defend against an unfair labor practice charge? The only individuals who could see the posts were the ten individuals who were invited to the group and no one responded. Perhaps the employer should have gotten a thicker skin. Hard to say.
If an employee brought these posts to your attention, what would you do?
*Chad Ambroday is a rising third-year law student at the University of Arizona. Both he and his wife, Autumn, were born on the Leech Lake Reservation in northern Minnesota. They have a seven-month old son, Arlo, who rules their household.
Teresa is the Chair of Fredrikson’s Non-Competes and Trade Secrets Group, and an MSBA Certified Labor and Employment Law Specialist. She counsels business clients on risk management and policy development relating to employee use of technology, and also litigates their business and employment disputes. Teresa trains, writes and lectures extensively on legal issues arising from business use of technology and social media.