With the advent of social media, a significant number of people have lost their jobs. From Roseanne Barr to James Gunn, the list of people with online mishaps runs long and deep. A few weeks ago, a Texas Children’s Hospital nurse joined the roster after she allegedly shared a Facebook post about a young patient who may have contracted measles while overseas.
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Nurse Isn’t Immune From Termination
The self-described “pediatric ICU/ER” nurse uploaded a post onto a Facebook page titled “Proud Parents of Unvaccinated Children—Texas.” She shared insights about her “rough” experience seeing the child with measles for the first time and described “how much worse (measles) was than what I expected.” Despite that incident, she allegedly added that she planned to continue “my non-vax journey with no regrets.” In a subsequent post—which has since been deleted—the nurse sought to retract some of her statements. It came too late to save her job, however, as the hospital promptly fired her, citing breach of private health information.
While the employer clarified that it didn’t fire the nurse because of her anti-vaccine stance, her viewpoints directly clashed with those of the hospital and undoubtedly raised concerns about her continued employment at the facility. Measles had not appeared in Houston hospitals since 2013, and most observers attribute its low prevalence to early childhood vaccinations. It’s unclear whether the nurse’s termination was triggered by the divulging of the possible existence of measles or by other protected information related to the patient. What is clear, however, is that despite Facebook’s ubiquity in our everyday life, social media remain a precarious minefield for many professionals to navigate.
What Does this Mean for You?
Off-duty social media conduct has always posed a unique and complex challenge for employers and employees. Stationed at the intersections of First Amendment, privacy, and employment laws, social media law can often ambush unwary posters who pass along their outside-of-work personal opinions. Notwithstanding discussion related to the terms and conditions of employment (or “concerted activity” under the National Labor Relations Act), both employers and employees should know that very little speech is categorically protected from the realities of the workplace, even if it occurs outside of work.
Employees should know that while they are free to do as they wish in their own time, they are not immune from the risk of adverse employment consequences if their speech adversely affects coworkers, their employer, or the employer’s clients or customers. That is especially true when the speech implicates privacy laws that impose strict limits on disclosure, such as those placed on healthcare providers by the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
If you are an employer, social media laws can be on your side. Under Texas law, you generally have the right to take action against an employee for off-duty conduct that damages company business or work relationships. As a practical business matter, however, you also know that canning a valued employee for off-duty conduct can lead to lost productivity. Here are some simple ways to mitigate those kinds of consequences:
- Adopt clear, written handbook policies on computer and Internet usage, especially regarding employees’ social media use during and outside of work hours.
- Require all employees to sign copies of the policies and, if possible, be trained on your guidelines for appropriate conduct and confidentiality.
- Remind employees that Internet postings are often cached and can be retrieved as evidence even after they’re deleted.
- Let employees know they should be extra cautious when disclosing sensitive information such as internal company procedures, processes, or personnel information.
While the line between civility and criticism often seems fine, having a strong social media policy will protect you and your employees alike from inadvertent disclosures or mishaps. As always, for best practices in drafting a robust social media policy, please consult with your attorneys.
Jacob M. Monty of Monty & Ramirez, LLP, practices at the intersection of immigration and labor law. He is the managing partner of the Houston firm and editor of Texas Employment Law Letter. He may be contacted at jmonty@montyramirezlaw.com.