by John E. Lyncheski, Esq., FACHCA

Social media in the workplaceDo you know, need to know, what your employees are tweeting?

Do you have any clue as to howmany of your employees "tweet"?Do you know how many employ-

ees have a Facebook page? Whoamong your employees is onLinkedln? Plaxo? MyS-pace? Classmates?Or, active on anyof the other newinstant messag-ing social me-dia sites thatare poppingup almostevery otherweek? Do

you have any idea how often your employeesvisit these sites while at work? How manyof your workers have a blog? Do you haveany appreciation of the extent to whichyour employees tweet or post abouttheir job and their work? Have youever "posted on a wall" or visitedone of your employee's walls?Should you visit these sitesto learn more aboutyour employees?What should youdo ifyou visit an em-ployee's social media site andlearn more than you should or informationthat should lead to termination?

Many of you will answer that you havenot visited a new media site, and some ofyou may even ask "Why should I care?"Unfortunately, the emergence of socialmedia as a widely used communicationtool is fostering unintended consequencesin the workplace which employers can nolonger afford to ignore. Long-term care(LTC) employers are far from immune tothese consequences and, in many respects,are more vulnerable to the negative impactof social media because of the nature of ourcore business—providing healthcare-related

services to the infirm and elderly in a highlyregulated environment.

Social media at workFacebook has graduated from its collegeroots and is now accessed by more than500 million users. Linkedln was originallyintended to connect employers and jobseekers, but has, intentionally or uninten-tionally, broadened its scope and now hasmore than 75 million "members." Every-

body that's anybody tweets on Twit-ter. It's the in thing

to do. A recentCisco studyrevealed thatthat more

t h a n

25% of employees admit to having changedthe settings on their workplace computers tocircumvent employer commtmication poli-cies. According to Cisco, one of the leadingU.S. network providers, almost one-half ofall employees age 30 and under have visitedsocial media sites on employer time, somefor more than an hour per day on meaning-less interactive digital games. Surprisingly,almost one-third of them claimed that they

were permitted to do so. Perhaps most strik-ingly from the information compiled byCisco, is the fact that, in the face of all ofthis data, only about 1 in 5 employers havea policy governing social media access andusage. Suffice it to say that access to socialmedia by employees is not going to waneanytime soon and that, much to the contrary,new media use is going to increase beyondany reasonable expectations.

As an employer, why worry? Aside fromthe obvious productivity, efficiency, and at-tention issues posed by access to these newmedia while at work, there are several im-portant human resource and legal concernsthat must be considered. From a humanresource and employee relations perspective,employers must decide where to strike thebalance between a congenial workplace thatpermits access to social media collaborationsites and one that protects confidentiality,security, and employer legal interests.

The legal concerns cover as broad arange as one can imagine. They span

from the ability of an adverse partyin a lawsuit to "discover" and

use yotir employees' per-sonal social media post-

ings to what you, as anemployer, can do with information

you learn about a candidate or an employeefrom a social media posting to the extent towhich you, as an employer, can be held "li-able" for certain employee postings whetherauthorized or not. Significant legal issuesarise potentially under antidiscriminationstatutes, CINA, the Fair Credit Report-ing Act, the Federal Computer Fraud andAbuse Act, the Stored CommunicationsAct, The Computer Related Offenses Act,HIPAA, and Federal Trade Commission(FTC) regulations. LTC employers are allwell aware of the constraints of HI PA A, butmany LTC employers have not focused onthe potential HIPAA violations which can

32 «OCTOBER 2010 www LTLMAGAZINE.COM

arise on the now casual social media. Theycan stem from as simple a scenario as an em-ployee complaining about his/her workdayand the conditions of the patients/residentscared for during the course of his/her shiftand possibly even directly or indirectly, theidentity of those residents. It simply doesn'ttake much for there to be an inappropriatedisclosure of PHI (protected health informa-tion) that runs afoul of HIPAA.

Much less appreciated are the restraintsand penalties of FTC regulations as theyapply to "new media, " "endorsements, " andcomments about a related party's "product. "The FTC's regulations on testimonials andendorsements in advertising in "new media"make not only the "endorser," but the em-ployer liable for failing to disclose "materialconnections" between and among "endors-ers" and the products and companies aboutwhich they comment. The liability attachesto the employer regardless of whether the"endorsement" was authorized or knownbeforehand. The FTC is particularly vigilant

with respect to false and unsubstantiated"endorsements." The FTC regulations alsoimpose an affirmative obligation on compa-nies to "maintain internal procedures" thatwill prevent violations of the regulations.

The FTC regtilations should not be takenlightly and the penalties are stiff, llie factthat we are primarily in a service businessis of no consequence to the FTC. A policygoverning use of social media while at workand restraining employees from work-relatedcommunications on social media sites atall times is a must. LTC employers shouldexpect that "customers" and "prospectivecustomers" will search the Internet forinformation and feedback, including youremployees' social media postings. The policyneeds to maintain the potential benefits ofsocial networking, but, at the same time,minimize the risks and the "threats" ofsocial media use and abuse. At a minimum,compliance with FTC guidelines requiresthat you "maintain internal procedures" ad-dressing limits and controlling "new media "

endorsements. HIPAA adds yet anotherdimension and, while most long-term careemployees are adequately schooled in thelimitations imposed by HIPAA, it is unlikelythat this training created an adequate aware-ness of how the "casual" communicationsabout work on a social media site can stepover the line. While a social media policyshould be specific to your facility and toyour culture, there are several elementswhich should be common to any and everypolicy on this subject.

Develop social media policyFirst and, perhaps, foremost, the facilitypolicy should make clear to employees thatit retains the right to monitor all use of itstechnology and any communications madeor received on employer equipment, fromoffice-based hardware to employer-providedcell phones, BlackBerrys, and other devices.Act affirmatively and clearly to remove anyexpectation of privacy and, unless you are agovernment-run entity, you have every right

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to do so. Next, according to a fairly recentdecision of the National Labor RelationsBoard, you have the ability to, if you sochoose, i mpose a complete ban on employeeuse of employer technology for personal ornon-business commtmications, provided theban is not enforced discriminatorily. It's upto you to decide how restrictive your policywill be in this regard, but even ¡f you chooseless than a complete ban, as many will, youmust be mindful of the FTC guidelinesand of HIPAA and build them specificallyinto your social media policy. Furthermore,both the I-TC and HIPAA require thatyour policy reach beyond the confines ofyour workplace and address use of personalequipment, personal media sites, on personaltime for any communication related towork or work-related matters, particularlyanything having to do with residents or theprovision of resident care. You must requireemployees to obtain approval for any post-ings that in any way involve your facility,your services, or your residents. Shift liability

to employees for postings on their sites thatare not at management's request. Makesure that employees understand that theyare prohibited from disclosing any and allproprietary, confidential, and "intellectualproperty" information. Absolutely ensurethat employees disclose their relationship toyou if they post information which promotes,endorses, or dishes yotir "products" andservices in any way, directly or indirectly;their employee status must be definitivelydisclosed. Make sure that employees under-stand that they will be held accountable forany social media behavior that steps over theline in terms of laws, rules, and regulations,particularly those of the FTG. Employeesmust also understand that "anonymous"postings will not escape FTG scrutiny.

Deceptive, misleading, and false postingsmustalsobeprohibited. Finally, and specifi-cally, the policy must prohibit disclosure ofany and all confidential, financial, sensitive,trade secret, resident, employee, or corporateinformation.

SummaryThere are many advantages and benefits fromtoday's new social media, but there are manypitfalls as well, particularly for LTC facilitieswhen they are "wearing their employer hat."A well-articulated and widely communicatedsocial media policy is a must and employerswould be wise to designate an individualwithin the organization to not only "police"social media usage, but to be available andresponsive to employees when social media

issues arise, I

John E, Lyncheski is a Director/Shareholder in thePittsburgh-based firm of Coben & Grigsby P.C, Hecbairs tbe firm's bealtbcare group and tbe firm'sFlorida labor and employment practice, Mr, Lyncbeskiis a Fellow in tbe American College of HealtbcareAdministrators (ACHCA), is on tbe Board of Directorsof tbe American Healtb Lawyers Association, tbeFlorida Assisted Living Association, and tbe FloridaCbapter of tbe ACHCA, among otbers. Contact bim atjlyncbeski@cobenlaw.com.

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