Discipline Based on Employees' (Mis)Use of Social Media on the Rise

In a case that has garnered national attention, a medical technician at a Michigan hospital was fired in July 2010 for a posting on her Facebook page. There has been a dramatic increase across the country in the number of employees discharged based on their use of social media, according to a recent survey from Proofpoint Inc., a California-based email security company. Case law in this cutting-edge area continues to evolve, and employers need to keep abreast of the latest developments.

The Michigan case involved an unusual fact pattern. The technician happened upon a shootout between an alleged bank robber and the police. The next day, she was involved in the hospital's treatment of the police officer and the shooter. The officer died, and the technician posted on her Facebook page that she had come "face to face" with a "cop killer." Someone alerted the hospital administration to the posting. Concerned that the posting violated the strict patient privacy rules under the federal HIPAA law, the hospital terminated the technician. She has grieved the decision.

As this case illustrates, employers are increasingly involved in monitoring electronic, and many times off-duty, conduct of their employees. Employers are faced with tough decisions requiring them to balance their own interests with their employees' right to privacy, and to the freedom of thought and expression typically associated with off-work hours. These thorny issues require careful analysis to avoid an undue risk of legal exposure. Employers need to be aware of these issues and make sure that they have appropriate electronic social networking policies in place. Without such policies, employers' investigations and discipline relating to the misuse of social media can appear ad hoc or arbitrary.

If you would like more information about the misuse of social media in the workplace, or assistance in drafting a social networking policy, please contact Daniel S. Tarlow at 617 456 8013 or dtarlow@princelobel.com.