Social Media Posts Create Risk, Can Require Discipline

Executive Summary

Recent events have shown the risks posed to healthcare employers by social media posts that inflame controversial issues or denigrate patients. Hospitals and health systems are well within their rights to take disciplinary action against employees who post offensive material on social media.

Posts made on an employee’s personal time still are subject to discipline.
Discipline for social media posts is not a free speech issue.
Employers should have clear social media policies.

By Gregory Freeman

Scores of healthcare workers have been disciplined recently for offensive social media posts, demonstrating how healthcare organizations should take steps to avoid reputational damage and other liability exposures. In most cases, hospitals and health systems are not constrained by free speech concerns when disciplining or terminating employees for their comments on social media.

A healthcare system in California terminated eight employees for posting “inappropriate and insensitive photos” of themselves on TikTok posing with the wet marks left by patients’ bodily fluids on exam table paper. The caption on one image said, “Are patients allowed to leave you guys gifts?” That was followed by images showing staff laughing, pointing, and posing with the wet stains in exam rooms. One image had the caption “Guess the substance!” The last image was a group photo of the employees with the caption “Make sure to leave your healthcare workers sweet gifts like these!”

After the TikTok videos came to light, the health system issued a press release saying the employees had been terminated. “Protecting the trust of those we serve is our highest priority, and when that trust is violated, we take swift action to address it,” the health system said. “Within 24 hours of becoming aware of the posts, we placed the employees on administrative leave, and within another 24 hours, we terminated those involved as part of this ongoing investigation.” The health system said the behavior was an “an outright violation of our policies, shows a lack of respect for our patients, and will not be tolerated.” The video was posted to TikTok by a former employee, the company said. The individual removed the video from TikTok, but it still is on the internet.

The killing of Turning Point USA founder Charlie Kirk while speaking to students at Utah Valley University in Orem, UT, prompted a spate of social media posts mocking his death and calling for more political violence. Employers in many industries took action against employees for offensive social media posts, but healthcare employers were under particular pressure to respond because the public questioned whether they could trust healthcare workers with their care after some of the more offensive posts. That question of trust was prompted by comments that went beyond political disagreement. This is some of the recent activity in healthcare:

A pediatric nurse in Atlanta was fired after posting “Fuck his kids. Fuck his ancestors, especially the bitch who birthed him.”
A Florida nurse posted “I’m cheering for the ass*ssinat*on. I don’t mind saying it. He was a b*stard. Deserves to be amongst the dead, should have been tortured.” Congressman Randy Fine from her Florida congressional district reported that the hospital fired her.
A respiratory therapist at an Ohio hospital posted “He deserves an unnamed ditch in the middle of nowhere. Maybe the waste of oxygen will be worth something to vultures.” His employer reported that it is investigating the matter.
A nurse in Washington posted “I love when evil white cis men die it’s literally my favorite thing.” The hospital reported she was placed on administrative leave while continuing an investigation.
An administration and clinical services coordinator at a children’s hospital in Pennsylvania posted “I hope Charlie rest in piss” and suggested Kirk was in hell comparing bullet wounds with Ashli Babbit, who was shot and killed during the Jan. 6 violence at the U.S. Capitol. Her employer did not immediately announce any discipline.
A hospital in Florida fired a neurologist for posts comparing Kirk’s killing to the deaths of “countless Palestinian babies, children, girls, boys, women and men,” and posting the Malcolm X quotation, “The chickens have come home to roost.”

Additionally, a nurse in Colorado is suing her hospital, alleging that she was suspended after reporting her concerns over a doctor who stated Kirk had it coming in response to her verbal statements of concern for Kirk. After its investigation, the hospital announced that the doctor had resigned and the nurse was still employed.

Not a Free Speech Issue

Both employees and employers often are mistaken about this being a First Amendment issue, says Larry A. Pankey, JD, partner with the Pankey & Horlock law firm in Dunwoody, GA. The First Amendment does guarantee free speech, he explains, but it primarily guarantees that the government cannot restrict what someone says. That does not mean there can be no repercussions for speaking your mind, he says.

“Yes, you have the right to say those things, and people have the right to disassociate with you because of it. In a private employer context, and in an employment-at-will situation, which is overwhelmingly across the United States, you’re fired,” he says. “Certainly with a healthcare provider, there’s just no right to the employee to show your ass and act out. It reflects poorly upon the institution. So, you don’t have the rights you think you have.”

Employees of government institutions have more protection from discipline related to speech, but even then the employer has the right to maintain decorum and protect its reputation, Pankey says.

“Sometimes the best advice is not to say anything at all. Shut up. It’s true wherever you stand on the political spectrum. At some point, your mom, your grandmother, told you you should never, ever speak ill of the dead, whoever it is. It’s an unforced error, and you’re never going to convince anybody,” he says. “Nobody likes being reminded that their heroes may or may not have done some bad things. It just gets you nowhere.”

Pankey notes that healthcare employers have good reason to be especially strict on social media posts they will tolerate. Offensive posts, particularly those condemning a specific group of people, can make patients question the care they receive, he says. “Regardless of whether you’ve harmed the patients, you’re making us look bad. We’re here to help everyone equally, and somebody who comes in wearing a MAGA (Make America Great Again) hat shouldn’t have to feel that their care is going to be belittled because you guys are all yukking it up about the demise of one of their favorites,” Pankey says. “It’s improper. It makes us look bad, and we don’t need that here. So, it’s time for you to go. You’re fired.”

The offensive post does not have to be made on behalf of the healthcare employer or directly reference the poster’s employment, Pankey notes. Posting in an identifiable healthcare setting, while wearing a uniform, or citing one’s employer can make the situation worse and more clearly worthy of discipline, he says, but merely including the place of employment in the poster’s profile is enough to justify concern. In some cases, the place of employment is only known after someone else finds out and posts it online to encourage criticism, but that still is a legitimate connection, he says. All healthcare employers should have a social media policy that prohibits posting any information that reflects poorly on the organization, Pankey says, and such a policy will provide firm backing if discipline is required. Discipline still can be administered without an explicit policy, but the employee might be able to more easily argue some type of discrimination, he says.

In addition to reputational damage and fears of inadequate care, offensive social media posts could play into a medical malpractice case, Pankey says. Videos of clinicians doing silly dances in the hospital during work hours could be used to question how seriously they take their jobs, he explains, and posts claiming that some people should be allowed to die because of their political beliefs would be extremely damaging if a patient is harmed under that clinician’s care.

National Labor Relations Board Unlikely to Apply

There are some nuances to how the First Amendment applies to social media posts, but, for the most part, employers are free to act on posts that they think reflect poorly on the institution, says Michael P. Gardner, principal with the Woods Rogers law firm in Roanoke, VA.

“Employees can jump up and down all they want about free speech rights, but the First Amendment is a prohibition against the government infringing upon your speech, not a private employer. I’ve dealt with this issue from all sides of the political spectrum. I got plenty of calls in the George Floyd era about employers wanting to distance themselves from an employee who was posting negative things about George Floyd,” he says. “It’s sort of flipped, and we’re dealing with it from the Charlie Kirk perspective, but the rules are the same. That is, if you’ve got an employee who expresses things that you believe reflect badly on you as an employer, you can discipline, and that discipline can be anything from a verbal warning to termination, depending on the employer’s own internal decision on what they believe is an appropriate punishment.”

One prohibition that limits that principle is Section 7 of the National Labor Relations Act, which gives employees the right to engage in “protected concerted activity,” Gardner says. The protected aspect is speech relating to the terms and conditions of their employment. The “concerted activity” aspect means two or more employees.

That means that if two or more employees are working together or discussing the terms and conditions of their employment, the employer cannot take adverse action against them based on that speech, Gardner explains.

“Typically, that’s focused more on unionization activity, but it does play into this arena. There have been some decisions from the National Labor Relations Board that held that multiple employees who were wearing Black Lives Matter pins were engaged in protected concerted activity in their workplace when the employer asked them to take those off,” he says. “I don’t know that that’s going to hold universally true across the country. If you’ve got employees who are wearing Charlie Kirk pins, does that play into the Section 7 world? I think it would be a stretch to say that that’s protected concerted activity, especially with the current iteration of the National Labor Relations Board, but it’s not outside the realm of possibility.”

Gardner advises employers who want to discipline an employee for social media posts to focus not on the political viewpoint being expressed but rather on the offensive content of whatever the speech was.

“If you’re picking and choosing how you discipline employees based on the viewpoint rather than the offensiveness, you just open a can of worms that you don’t want to get into. They might not have a strict First Amendment claim against you, but if you’re treating employees differently because one employee says on social media something awful, like ‘George Floyd deserved it,’ and another employee says on social media something awful, like ‘Charlie Kirk deserved it,’ that can be a problem,” he says. “You should treat your punishment of those two employees the same, irrespective of what your political viewpoint is. If you’re picking and choosing, then you can be accused of all kinds of reasons for picking and choosing that may not be First Amendment-based, but an employee may categorize that picking and choosing as race-based discrimination.”

Employees should understand that discipline is possible if what they post can negatively affect the employer’s customer base or bottom line, or if it can bring them reputational harm or is otherwise a violation of their workplace policy, says Marjorie Mesidor, JD, partner with Mesidor, a law firm in New York City. The terminated California clinic employees demonstrated that employers have wide latitude to protect their reputations in the community, Mesidor says.

“If the person is conducting themselves in a way that is so reprehensible that the company has now lost confidence in their skills, the employer can lose confidence in their ability to manage,” Mesidor says. “Imagine somebody being so callous, like those employees [who] were fired in California for making fun of the patients. Forget politics. That’s just not somebody who you want with your patients.”

Employees often overestimate their freedom to post on social media without consequences, Mesidor says. Government employees, which includes some healthcare workers, have some protection because the First Amendment protects criticism of the government, she explains.

“Since Charlie Kirk, in this example, is not a member of the government, criticizing him cannot be protected speech. If you are a public employee, there is some limited amount of protection of freedom of speech at work, because when you criticize the government, you’re criticizing your employer,” Mesidor says. “But even then, the speech would have to be off the clock, limited only to terms and conditions of the employment.”

Wrongful termination claims would be difficult to pursue but they are possible, she says. “A fired employee could attempt to file a wrongful termination claim, but it would be an uphill battle. To succeed, the individual would likely need to prove that their firing was based on a violation of public policy, such as discrimination based on a protected characteristic like race, religion, or gender, or that it was in retaliation for a legally protected activity such as reporting illegal activity,” Mesidor says. “Simply expressing an opinion that an employer finds offensive is not, in itself, a violation of a public policy in most jurisdictions.”

Can Ask for Post Deletion

Employers do not always have the ability to access social media posts beyond what is available publicly, says Jill Kahn Marshall, JD, partner with the Reavis Page Jump law firm in New York City. State laws may restrict how employers can require employees to grant access to their social media, she notes.

New York state, for instance, passed a law stating that employers cannot require employees to provide access to their social media accounts, she says.

“But that doesn’t mean that, if an employee decides to make something public or share it with co-workers such that the employer finds out about it, the employer can’t act on that. It could still be at play in the workplace, but they just don’t have an absolute right to view their employees’ social media,” Marshall says. “Connecticut has a law that actually does say that employees should not be terminated for the exercise of First Amendment rights or similar rights in the state Constitution, as long as it doesn’t materially interfere with the employees’ job performance or a working relationship with the employee and employer.”

A healthcare employer can ask an employee to remove offensive social media posts, but there is no way to require them to do so, Marshall says.

“They can tell them that there will be a consequence if they don’t,” she says. “It’s a good practice to say that employees should not post on their personal social media on behalf of their employer. So, if it mentions the employer in any way, that gives the employer a lot more reason to tell them to change it or delete that part of it.”

The employer’s obligation to intervene is especially clear when employees appear in offensive social media posts wearing healthcare uniforms or showing clinic areas, says Jonathan Wong, DDS, owner and endodontist at Renovo Endodontic Studio in Elgin, IL. The TikTok post featuring wet stains on exam tables is a good example.

“The truth is that the moment a staff member puts on their uniform, acknowledges they work for us, or films anything inside their workspace, the public automatically associates that content with the organization. Almost 70% of patients reference online reputation before selecting a provider, and a 20-second video mocking patient experiences can attract hundreds of complaints in hours,” Wong says. “I will never forget a staff member casually made a comment to a closed peer discussion group, and weeks later, it was resurfaced, leading us to months of reassurance and damage control as a team. Therefore, the intention of the behavior is less important than the perceptions of the behavior, and those perceptions can lead to a host of legal and financial issues for our organization, even more than many staff may think.”

Prevention works best when policy is coupled with education, he says. Written policies should be explicit in their expectations, and training scenarios should require an employee to analyze the example and discuss the consequence afterward. “We can see that practice reinforces accountability to a far greater degree than policy,” Wong says. “Healthcare organizations must continually remind staff that while speech is free, they are never free from accountability for any speech that undermines patient trust.”

The presence of an identifiable uniform, logo, or location greatly enhances the need to act, agrees Moti Gamburd, CEO of CARE Homecare, an in-home care agency serving seniors in Los Angeles and Orange Counties, CA. “If someone wears a uniform, films in a care setting, or makes comments mocking patients, the public will connect that behavior with the organization. Even when the employer is not directly named, these actions harm trust,” he says. “At CARE Homecare, we emphasize during training that social media activity reflecting poorly on patient dignity is grounds for discipline, and that standard is written into our handbook.”

The best protection is a clear, consistent policy supported by education, he says. Outlining what is unacceptable, giving concrete examples, and stating the consequences removes ambiguity. “Disciplinary measures must be consistent to avoid claims of unfairness, and legal review is essential before dismissal,” Gamburd says. “By setting boundaries early and reinforcing them regularly, employers protect both their reputation and the dignity of those in their care.”

Greg Freeman has worked with Clinican.com and its predecessor companies since 1989, moving from assistant staff writer to executive editor before becoming a freelance writer. He has been the editor of Healthcare Risk Management since 1992 and provides research and content for other Clinician.com products. In addition to his work with Clinician.com, Greg provides other freelance writing services and is the author of seven narrative nonfiction books on wartime experiences and other historical events.

Sources

Moti Gamburd, CEO, CARE Homecare, Los Angeles and Orange Counties, CA. Email: [email protected].
Michael P. Gardner, Principal, Woods Rogers, Roanoke, VA. Telephone: (540) 983-7533.
Jill Kahn Marshall, JD, partner with the Reavis Page Jump law firm in New York City. Telephone: (212) 763-4145.
Marjorie Mesidor, JD, Founding Partner, Mesidor PLLC, New York City. Telephone: (315) 812-3920.
Larry A. Pankey, JD, Partner, Pankey & Horlock, Dunwoody, GA. Telephone: (770) 670-6250. Email: [email protected].
Jonathan Wong, DDS, Renovo Endodontic Studio, Elgin, IL. Email: [email protected].