Social media and your employees

As an employer, you will need to set clear social media policies that comply with employment laws and regulations. Here are some key points to keep in mind.

• Public policy governing social media tends to favor free speech.
• Workplace rules on discrimination, privacy and employment policies that apply in the "real world" also apply to the online conversations.
• Expectations governing online privacy should be clearly spelled out as part of a written social media policy.
• Employee discussions of working conditions, hours and wages may be protected by the federal National Labor Relations Act. Policies and employment decisions should not discourage these conversations.
• If you use social media to promote your practice, you should identify which employees are authorized to post messages and set clear standards for usage, etiquette and security.

Your dental practice should have a written social media policy that functions as part of your workplace rules and guidelines. Here are tips for creating an effective policy.

• Avoid creating overly broad rules that might appear to prohibit comments about working conditions, hours and wages.
• Set clear expectations for employee privacy. For example, disclose that you will retain the right to access company computers and monitor electronic communications.
• Make sure your social media policy closely follows traditional workplace policies on harassment, confidentiality, discrimination and professionalism.
• Ask employees to use a simple disclaimer on personal social media channels that makes clear they are not speaking on behalf of your practice.

Rules governing hiring practices in the “real world” apply in the online world, too. Points to keep in mind:

• Information that would be inappropriate to ask for in a job application or interview should not be sought out on social media.
• Hiring decisions must not be based on protected class information (race, national origin, sexual orientation, disability, etc.). Follow federal and state discrimination and other employee-rights laws and make sure other team members involved in screening and hiring candidate follow them too.
• Certain state and federal privacy laws prohibit improper access to private, non-public information.

When terminating an employee, follow all applicable federal and state rules on discrimination, disability and other protected matters. Realize that it can be risky or even illegal to base your decision on content an employee has shared online. Be especially careful of content that may be interpreted as whistle-blowing, legal off-duty activities, political activities and affiliations, or concerted activity under the National Labor Relations Act.

Termination may be appropriate when an employee violates social media policies that have been properly created for your practice. Examples might include:

Termination may be appropriate when an employee violates social media policies that have been properly created for your practice. Examples might include:

• Disclosing trade secrets or proprietary information on social media
• Sharing defamatory statements about a co-worker or competitor
• Posting about misuse of practice equipment in violation of workplace policies

If you are investigating an employee, refrain from violating federal and state privacy laws — for example, asking a co-worker for an employee’s social media passwords when you are searching for information.

American Medical Response (NLRB). Illegal to terminate employee for comments regarding supervisor because employer's social media policy was too broad in that it prohibited concerted activity (allowing employee to discuss wages, hours, and working conditions).

Electronic Communications Privacy Act (ECPA) and Stored Communications Act (SCA). Prohibit unlawful access to stored electronic communications (Exceptions exist where voluntary consent (implied or direct) is obtained to gain access on company computers. Note: Some states (e.g., Illinois, Delaware) have more stringent laws. Key: Did employee have reasonable expectation of privacy? Thygeson v. U.S. Bancorp (D. Ore. 2004) (court held no reasonable expectation of privacy by employee who was fired for excessive use of internet/lewd comments because employee used company network to access content); Pietrylo v. Hillstone Rest. Group (D.N.J. 2009) (violation of SCA because employer pressured co-worker to obtain MySpace password).

Legal off-duty laws. In some states (e.g., California), can't fire employee for intoxicated Facebook pictures if employee is of legal drinking age.

Whistleblower laws. State laws/SOX. Is social media comment related to poor working conditions, safety, or fraud violations?

Child pornography laws. Some states (e.g., Illinois, Michigan, Missouri, etc.) have mandatory reporting statutes that require IT to report child pornography found on computers they service.

FTC reporting requirements. Employers may face liability when employees comment on company products or services on social media without disclosing employment relationship.