With friends like these …

The perils of Facebook; how to protect your practice

August 6, 2010 (published)
By Jim Downing

Like it or not, veterinarians, Facebook is in your clinic. With more than half of working-age Americans maintaining Facebook profiles — not to mention the tens of millions using Twitter or emerging sites like Tumblr — it’s nearly certain that some of every practice’s employees and clients are sharing information on a social networking website.
While social networking opens new possibilities for marketing a practice and building a relationship with clients, it also presents a number of pitfalls. In a recent Veterinary Information Network (VIN) online discussion, veterinarians related a number of troubles that arose from Facebook posts, from employees criticizing the boss and feuding with one another to a kennel assistant criticizing the practice’s declawing procedures. The situations led to special staff meetings, uncomfortable confrontations and in several cases, firings.

Potential problems go beyond personnel difficulties to serious legal liabilities, according to attorneys and social-media experts. Using Facebook in the hiring process can expose a practice to discrimination suits. If a staff member posts confidential patient or client information online, the practice can be held liable. A harassment suit against the practice can be prompted by an employee viewing offensive material on a work computer. Even pride in the practice could be punished with a defamation suit, if, say, an employee posts an untrue criticism of a competing animal hospital.

Fortunately, experts say, by paying attention to a few Facebook-usage guidelines and preparing a formal social networking policy for the practice, veterinarians can both reduce their legal risk and avoid at least some of the personnel problems social networking can raise.

According to Nancy Flynn, author of “The e-Policy Handbook” and executive director of the ePolicy Institute, a Columbus, Ohio-based electronic communications training and consulting firm, the basic message for employees should be not to mention the clinic at all on personal networking sites, whether it's giving a status update that mentions a particular patient or posting pictures taken in the office.

As with patient-client confidentiality policies, practice owners should make sure that employees have read, understood and signed the clinic's electronic communications policy, Flynn said.

VIN News Service contacted five practice owners for this story who had reported Facebook-related personnel problems on a VIN message board. None had adopted a policy for the practice that specifically covers social networking behavior. The practices generally had confidentiality policies concerning information about clients and patients as well as the operation of the practice, and some owners said they made a point of telling employees that those policies apply to activity on social networking sites as well.

Dr. Dave Luttinen, who runs two clinics in western Washington, said he held a staff meeting to discuss social networking behavior — and nearly fired one employee — after learning of a series of Facebook posts critical of him. The episode started with a brief post by receptionist Aly Gutcheck, 26, grumbling about having to miss lunch again because of her workload. Many of her Facebook friends (including some of Luttinen’s former employees) piled on, and soon the thread was a long rant about the clinic.

“They were going off,” Gutcheck said. “It was just one of those snowball effects.”

Luttinen found out about the online conversation from his mother-in-law, who had worked in one of his practices and was a Facebook friend of Gutcheck’s. He immediately called a staff meeting to make clear that he felt such postings hurt the clinic. In the meeting, he clarified that the clinic’s confidentiality policy extended to information about the operation of the clinic and that he considers postings on social networking sites to be public.

Luttinen initially planned to fire Gutcheck. He reconsidered, he said, after re-reading the post and realizing that while Gutcheck’s comment about missing lunch had sparked a bit of online rage, it wasn’t intended to do so.

Gutcheck said she has changed the way she uses Facebook, from tightening her privacy settings to studiously avoiding discussions of work.

“I don't talk about any cases, anything like that. And nothing about any employees,” she said.

Flynn said social networking policies can and should extend to social networking activity on non-work computers or mobile phones and to posts made during non-work hours. Courts haven’t specifically upheld employers’ rights to adopt such broad policies concerning Facebook — in part because the site is only 5 years old and few decisions have been issued — but employers have prevailed in roughly analogous cases involving electronic media, Flynn said. For example, courts have upheld an employer’s right to fire an employee on the basis of comments made on a personal blog during off-work hours.
Flynn’s group frequently offers free webinars on social networking policy issues for businesses. She also provides (for a fee) training programs for employees on electronic communications policies. Her website soon will offer social media policy templates for businesses, she said.

Ed Guiducci, a Colorado-based attorney who specializes in the veterinary sector, also recommends that practice owners have a social-networking policy. He suggests having the policy reviewed by a labor attorney to ensure compliance with state laws, which may limit an employers’ right to restrict certain types of personal expression.

Practice owners also need to be careful about what they do on Facebook, said Guiducci and others.

Screening job applicants by looking at their Facebook profiles is particularly risky. Such screening could be the basis for a discrimination suit if an unsuccessful applicant could show that the practice (or an employment agency) used Facebook to investigate applicants, and that such use had given the employer information that shouldn’t enter into a hiring decision, such as the applicant’s marital status, sexual orientation or religious affiliation.

“From a pre-employment standpoint, I would stay away from it, because I don't know what you're going to find when you open up the page,” Guiducci said. Guiducci also discourages veterinarians from becoming Facebook friends with employees or co-workers that they don’t also consider to be real-world friends.

For similar Pandora’s-box reasons, Lewis Maltby, president of the National Workrights Institute, a workplace-rights advocacy group, argued that in most cases, it’s a bad idea to troll for information about current employees — particularly ones who aren’t causing any problems.

“If you think about it, you’re going to find out a lot of things that you don’t want to know,” he said.

“You search the social networking sites and there's your employee mooning somebody. Now you're concerned,” Maltby said. “If you knew everything about the private life of everybody who works for you, it'd be a nightmare for everybody.”

On the other hand, Maltby says, if there’s reason to believe an employee is doing something that could hurt the practice, a search for relevant information is warranted.

And, Maltby said, he would have little sympathy — and probably no legal recourse — for a veterinary clinic employee who gets fired for badmouthing the practice on a social networking site.

A quick guide to dealing with Facebook for practice owners:

• Do adopt a social networking policy for your clinic and make sure employees understand it.
• Don’t use Facebook to screen job applicants.
• Don’t become Facebook friends with an employee who isn’t also a real-world friend.
• Do use Facebook as one tool to investigate employee misconduct, if you have reason to believe the employee is doing something wrong.

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