If you are like most medical practices you either use a stand alone social media policy or you address social media policies in your Employment Agreement, but how many of you have taken the time to make sure the provisions contained in your agreements are enforceable/legal? Now is the time to dust off your agreements and read them to make sure you can actually enforce the provisions contained within your Agreements.
So before you decide to terminate your “scumbag” commenting employee you dust off your Agreement and find you have the following two provisions in your social media policy:
“Employees may not make disparaging remarks when discussing the medical practice or supervisors and from depicting the practice in any media, including but not limited to the Internet, without company permission.”
“Employees are prohibited from posting pictures of themselves in any media, including the Internet, which depict the Practice in any way, including their practice uniform/scrubs or logo.”
Clearly being referred to as a “Scumbag” is a disparaging remark, right? While it would seem to qualify as a disparaging remark you need to remember that that fact alone does not necessarily mean you can fire your employee.
Questions You Should Consider BEFORE Taking any Action:
Where were the remarks made?
When were they made?
Why were they made?
Did a conversation result?
If yes, who was participating in the conversation?
Why do I Need to Ask any Questions? My employees are At-Will?
An exception to at-will employment is that you cannot fire an employee if your basis for firing them violates a federal law. Have you ever heard of the National Labor Relations Act ( NLRA)? If not, then you should know that if you terminate an employee and the basis for your termination violates the NLRA you might be forced to re-employ the employee and pay them any back wages owed. Do I have your attention now? Back to our example.
Additional Facts that Led to “Scumbag” Comment:
Where was the “Scumbag” comment made? On Facebook.
When was the “Scumbag” comment made? At home, on the employee’s personal computer.
Why were they made: You asked the employee to prepare an incident report concerning a patient complaint. She requested union representation and was denied. You then threatened her with discipline when she tried to invoke her right to representation. (Don’t tune-out…it doesn’t matter whether you have a unionized workplace or not)
To whom: Her Facebook friends, to include co-workers.
Did a conversation start? Yes.
Who participated? Co-workers participated in an on-line discussion of your supervisory action.
You fired the employee and she filed a complaint with the National Labor Relations Board. Here’s what they found:
Both policies were found to be unlawful. For our purposes, it is important to realize that in this example the employee, while off duty, was discussing the terms and conditions of employment with co-workers. This type of activity is protected under section 8 (a) (1) of the NLRA. Had you taken the same employment action you would now be posting a notice at your work site, bringing the employee back to work, and providing them with all back wages due.
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I am an attorney, but I am not your attorney. Anything on this blog or in this post should not be construed as legal advice or legal services. If you have an employment law question, you should consult your attorney.