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When disciplining someone for their social media posts, let caution prevail.

Some social media infractions that make the news seem inarguably "just stupid."

Like the CNA in Indiana who posted a photo of a 51-year-old male paraplegic's behind on Facebook last May. Come on, don't we know better than this?

But, what about the nurse in Kentucky who posted Facebook comments complaining about the high patient-to-nurse ratios at the hospital where she worked?

The difference between the two?

One is an example of behavior that crosses the line into patient privacy issues; the other an issue related to comments about working conditions or pay.

The first falls clearly into an area that can be addressed through employer policies. The second strays over into protected activity under the National Labor Relations Act (NLRA).

As with most issues impacted by social media these days, it's not that the rules are changing, it's just that the impact of complying - or not complying - with these rules is being felt far more broadly than ever before.

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In the "old days," if a nurse manager was aware of two nurses grumbling about their working conditions in a hallway, they might call them on it and few would be the wiser.

Today, though, if those same nurses are grumbling on Facebook, the impact changes exponentially.

The rules - about what managers should and shouldn't do in response to such things - have really not changed. The awareness of those rules, and potential infractions, is just coming more to the forefront.

The American Medical Association in 2010 adopted a policy on the use of social media in 2010.

In October 2011, the American Nurses Association and the National Council of State Boards of Nursing mutually endorsed guidelines for upholding professional boundaries in a social networking environment.

In January 2012, NLRB weighed in on issues relating to discipline or termination of employees for comments or complaints related to working conditions. The Operations Management Memo covers 14 social media cases, half of which address questions about employer social media policies.

NLRA & the NLRB

The NLRA and the NLRB set the stage for what employers - and managers - should and shouldn't do with regard to disciplining employees for things they may say or do in the social media world.

"Generally, an employee has a right under the federal NLRA to discuss wages, hours or working conditions with co-workers," said Sherry Downer, an attorney with Fennemore Craig, Tucson, AZ.

Consequently, if an employee is found talking in the hallway about their low wages and is fired, that employee can file an unfair labor practice charge with the NLRB.

But what about that same employee making the same comments online? Can they also be fired?

"The quick answer is 'it depends,'" said Phillip Wilson, president of the Labor Relations Institute, Broken Arrow, OK.

"There are certainly cases where a termination for things said on Facebook or other social media sites have been upheld," he explained.

"The trick is that it is a very fluid area, and many times these terminations are overturned."

Downer points to Martin House, in which an employee who worked the night shift at a mental institution engaged in conversations with friends on Facebook while at work.

In these conversations, the employee said it was spooky to work there at night and made comments about the patients.

A former client of the institution saw the posts and reported the employee.

She was fired.

In this case, the NLRB upheld the termination because the employee was "merely communicating with personal friends about what was happening on her shift" and not discussing wages, hours or working conditions with co-workers.

As you can see, the lines can be just a bit blurry.

Wilson's advice? When it comes to disciplining someone for what they've posted on a social media page, let caution prevail.

The key factors to consider, he said, are the type of comments being made and whether the conversation represents "concerted" activity. Termination for defamatory statements or disclosures of confidential or patient information are often (but not always) upheld.

"But," he cautioned, "complaints about working conditions or pay, especially if the complaint is made to or seen by co-workers, normally are not considered proper grounds for termination."

Importantly, even in organizations that don't have a union, the NLRA still applies, noted Todd Fredrickson, managing partner of Fisher & Phillips' Denver office.

"One of the common misconceptions is that the National Labor Act only applies to union employers - that just isn't true," he said. "It's a pretty well-kept secret."

Understanding what the act entails and how it impacts your ability to direct, monitor and respond to employee comments either on site or online is critical. That understanding can help in crafting and communicating policies about expected behaviors to help both employees and managers.

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Your Policies

Having clear policies, and doing a good job of communicating those policies, is an important step in ensuring you can avoid or minimize problems.

Policies can be very helpful, said Fredrickson, not only for the organization and its managers, but also for employees.

"The policy will guide them on the appropriate and inappropriate uses of social media to do their jobs," he said.

For employers, policies can help determine whether employees have engaged in some form of inappropriate social media use.

"You want to have a policy in place that explains that this conduct can be grounds for discipline," said Phillips.

But, he cautions, you also want to make sure the policy is not overly broad, and that it clearly states employees have a protected right to talk with co-workers about things like working conditions or pay.

"The NLRB is taking every opportunity to look at these policies and often finds employers guilty of unfair labor practices for having over-broad policies," he said.

It's important to note, though, that your policies cannot supersede the law, said Fredrickson.

Regardless of what you say in your policy, employees' rights still flow from the NLRA. Those don't go away just because you make a statement in your policy.

"A policy I just drafted the other day, for example, had a clause at the bottom that specifically said that nothing in the policy was intended to dissuade or prevent employees from exercising what are called Section 7 rights under the NLRA," said Fredrickson.

Practical Considerations

There are, of course, concerns beyond legal liability that nurse managers should consider when it comes to dealing with disgruntled employees - whether in the hallway or online.

It can be instructive to find out what's behind these complaints and comments and take steps to address any legitimate issues.

From a practical perspective, suggested Stephen R. Balzac, president of 7 Steps Ahead, LLC in Stow, MA, much can be learned by the tenor of employee comments online.

"Painful though it may be, it can be worthwhile to ask yourself what might have happened to cause this employee to respond in this way," Balzac said.

"Employee rants may well be alerting you to the presence of a jerk on your team or management staff, or to some other systemic problem that no one has been willing to bring to your attention."

Lin Grensing-Pophal is a frequent contributor to ADVANCE.


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