Health Wolters Kluwer Law & Business will periodically feature posts from outside contributors who are members of our Advisory Board. Today’s post comes from Kristine Chung Salcedo.
Many companies have enacted social media policies that govern employees’ online behavior on websites such as Facebook, Twitter, and Blogger. Some of these policies impose disciplinary action against employees who criticize their employers. For example, an employee who complains about his manager on Facebook may receive a verbal reprimand. However, a broad rule prohibiting employees from disparaging their employers could violate the National Labor Relations Act (NLRA), according to two National Labor Relations Board (NLRB) decisions issued in September 2012 (Costco Wholesale Corp., 358 NLRB No. 106 (Sept. 7, 2012); Knauz BMW, 358 NLRB No. 164 (Sept. 28, 2012)).
Section 7 of the NLRA protects an employee’s right to engage in “concerted activities” for the purpose of “collective bargaining, or for other mutual aid or protection.” Section 8 prohibits an employer from interfering with or restraining employees who are exercising their Section 7 rights.
According to the NLRB, employees’ statements criticizing their employers or their work conditions would be protected under Section 7 of the NLRA. Therefore, a hospital policy broadly prohibiting employees from criticizing the hospital or otherwise damaging the hospital’s reputation would violate Section 8 of the NLRA. A single blog post or tweet may be protected even if no other employee responds or joins the discussion. Further, even hospitals without unions must ensure that their policies comply with the NLRA. Hospitals should therefore seek the advice of legal counsel, and reexamine their employee handbooks and social media policies in light of the recent developments.
Kristine Chung Salcedo, Esq., is a compliance analyst at the corporate headquarters of Cancer Treatment Centers of America, where she focuses on physician and hospital compliance, HIPAA, health reform, and billing compliance. Prior to her current position, Kristine worked as a writer analyst in the Health Law department of Wolters Kluwer. There, she researched and developed content for a number of health care compliance publications and applications. Kristine is a member of the American Health Lawyers Association and the Health Care Compliance Association. She obtained her undergraduate degree from Barnard College, Columbia University, and her law degree from the University of Wisconsin Law School.