A November action by the National Labor Relations Board may force many a healthcare provider to re-think its policies toward social media.

As American Medical News reports, the NLRB last month filed a complaint against American Medical Response of Connecticut regarding the ambulance firm's firing of an employee who mocked and criticized her supervisor on Facebook. The negative comments came after the supervisor reportedly refused to allow a union representative help the employee draft a response to a customer complaint.

In its complaint, the NLRB says that the comments were permissible because they elicited responses from co-workers and were considered "concerted activities" by employees to improve workplace conditions and thus protected under law. An administrative law judge will hear the case in January.

Perhaps because of this action--the amednews story isn't clear on this--the NLRB on Nov. 9 apparently modified a 2009 opinion by saying employers need to apply a four-point test to determine whether employee postings are protected or not. Consider the place of discussion, the subject of the discussion, the nature of the "outburst" and whether the posting was provoked by "unfair" labor practices.

"You're not really allowed just to disparage and sabotage your employer," Chicago attorney Damon Dunn tells amednews. "There has to be a purpose for the betterment of the employees' working conditions. If you are a lone wolf, you are not protected."

Another lawyer, Pittsburgh-based Michael McAuliffe Miller, is unsure how the administrative law judge will react to the NLRB complaint, but he sees the filing as a signal to employers that they "need to do a lot more digging" before simply firing an employee for an embarrassing or damaging post online.

According to Cleveland attorney Susan Keating Anderson, the case shows why healthcare providers need to have clear policies about employee use of social media. A blanket prohibition against mentioning the employer on social media sites likely is too broad and could actually be a liability. Instead, set a specific policy about, say, posting anything that could hurt the company's reputation, expose proprietary information or hurt the organization's ability to do business.

For more on this case:
- take a look at this amednews story
- read the NLRB complaint

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