[Click here for the related "Using Social Media to Promote Compliance & Ethics" page]


Restrictions on Social Media Use – and on limiting its use . . .


"Protected Concerted Activity

The most discussed legal limitation relating to Social Media in 2012 was the National Labor Relations Board’s determination that use of social media may constitute “protected concerted activity” under the National Labor Relations Act. Generally protected activity (aka Section 7 activity) is the right of workers to complain about working conditions, pay and benefits even if they aren’t in a union. This right may conflict with employer concerns about certain topics making their way on to social media – for example patient information, trade secrets, or even just comments about customer or co-worker behavior. The NRLB released a series of Operations Management Memos in which it reviewed and found improper provisions in several employer social media policies that broadly prohibited employees from discussing workplace information. The Board also approved a policy that gave specific examples of improper use under the theory that the examples will make it clear that the policy does not limit their right to complain. (The examples will also be useful in employee discipline actions so one could see this direction as a real “win win”.) The results in individual cases brought before the NLRB by fired employees are mixed.

States have also begun passing laws that prohibit or limit employers from requiring disclosure of passwords to personal social media accounts. Here is California's AB 1844 which took effect January 1, 2013.

The Federal Trade Commission

Tempted to post a positive “review” of your organization online? First read the FTC’s 2009 “Guide” on Endorsements, Testimonials and Product Reviews, including those on blogs. The rules here aren’t that hard to follow – opinions are fine, just tell the truth about who you are, who you are associated with and any “material connections” (like $$$ or free products) you have with the subject of your opinions. But the rules are important to know since the FTC has made it clear that those endorsing can be held liable for violations of the FTC Act – not just those they endorse for a fee.

The New York Technology Council shared an overview of these rules in Social Media Dos and Don'ts : Legal Compliance You Will "Like" in 2012. (video)

Business Communications

The securities industry has long had rules about “business communications”, not only as to content but also recordkeeping and supervision of those associated with registered firms. So recent “Guidance” about social media is really just the application of these rules to new technology and what it makes possible - for example, links to other websites that may have misleading content and third party data feeds that the firm chooses to incorporate into its own site. FINRA’s Guidance on Blogs and Social Networking Web Sites (10-6) is a good place to start exploring these responsibilities. The SEC has also issued a Risk Alert (2012)focusing on the possibilities of fraud and misrepresentation in social media. Meanwhile, the Federal Financial Institutions Examination Council is considering comments to its proposed Guidance to banks,credit unions and savings and loans .

Limits on Lawyers

Correspondingly, many bar associations have published guidance on the application of already existing limits on lawyer advertising to the possibilities of social media. Issues include whether / when a duty of confidentiality arises because of a website inquiry,. social media contacts between parties / their counsel / judicial officers / witnesses, the application of recordkeeping rules, and client testimonials. However, similar rules are interpreted differently in different states and some jurisdictions are even revising their rules to apply more specifically to social media.


A recently published set of "Guidelines" by the Commercial and Federal Litigation Section of the NY State Bar Association has a good overview of the areas where lawyers may stray into difficulties - advertising their talents, communicating with actual and potential clients, researching their case and the backgrounds of jurors - even checking for inappropriate conduct by jurors during a trial.

Confidentiality and Privilege

Doctors, lawyers, clergy, and those whose jobs involve health information protected under the Health Insurance Portability and Accountability Act (HIPAA) all have duties that long predated the advent of social media. It was a violation of these duties to share client / patient information, without consent, in a hallway, cafeteria or elevator. It’s just as much a violation to disclose it through social media. But that hasn’t stopped it from happening. For example:

  • Four California emergency department personnel posted pictures of a trauma patient on Facebook, resulting in the loss of their jobs and adverse action against the hospital where they worked.

  • A Rhode Island physician who posted details about caring for a patient, but not the actual name, was fired from her hospital position and reprimanded by her state medical board.

  • A Chicago nurse started a Facebook page called “Do you know this alcoholic Indian?” – sharing photos and comments about a “frequent flyer” patient with 600 “friends”.

  • A group of nurses in Fargo, ND began using Facebook to give “off shift” report to one another.

Anyone involved in any of these professions “should become familiar with laws involving the duty to maintain confidentiality. Any breach in confidentiality—even one that seems minor—can result in mistrust and, possibly, a lawsuit and/or disciplinary action.” (AMA 2012)


The typical employer reaction to an inappropriate posting by staff these days seems to be prompt firing. But at least in some cases that's not enough to hold off the subsequent suit for damages.

Professional Codes and Social Media

In addition to the lawyer restrictions mentioned above, professional associations of all sorts are beginning to define how their members should comport themselves in social media. Take for example these attempts to control professionals:

Or you can try to control what others say about you on Social Media:

Policies

Given the number of potential legal and professional pitfalls, most organizations would be well advised to consider writing a policy on what uses of social media it will and won’t permit, within and outside the workplace. Yet as of 2011 a survey by SCCE and HCCA found only 1/3 of the surveyed organizations had policies addressing use of social media outside of the workplace, although a rising number of organizations are disciplining employees for such activity. (Survey results [registration required]; article including interview with Roy Snell about the results)

However some companies and organizations have stayed abreast of this issue:

And others have published resources for those just writing (or revising) their policies:

Training

Once the policy is adopted it's time to train:

Or you can try doing it in a different order:



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