By Peter Cohron
A pharmacist recently contacted me with a question about a requirement for his new job with one of the major drug store chains. The chain had what he thought was a rather restrictive policy regarding the off-work use of social media (Facebook, MySpace, etc) and the pharmacist was wondering if the employer could actually restrict the employee’s use to this degree.
After reading through the policy twice, I concluded that the policy barely allows employees the use of social media. According to the way I interpreted the statements on making comments on-line, each time the employee did so, he was required to add a statement absolving the chain of any responsibility. He and I had a good laugh over the possibilities: “The Hunger Games was a great movie! This is the opinion of Joe Pharmacist and does not reflect the opinion of X Drugs. Additionally, X Drugs is not responsible for the content of any comment or statement herein enclosed.”
Of course, this is no laughing matter. The policy made it clear that failure to add those statements at the end left him open to immediate and incontestable termination.
To the extent that employers will share these, I have found that almost every employer, pharmacy or not, has in the last year, created a policy on the use of social media by its employees. In every case, these policies are quite restrictive on the use of social media: usually how and when the employee may mention the employer by name is subject to limits, all confidential information must not be mentioned, and employees agree that if the employer does not have a monitoring program already in place they will allow their employer access to their social media sites for inspection. Finally, it is made clear that, like above, not confining one’s use of social media to those restrictions is a basis for termination of the employee.
A legitimate basis exists for employers to be concerned. In the past, disgruntled employees have verbally or written (true or not) defamatory statements of their places of employment, their bosses, and their corporate leadership, as well as releasing to the public confidential and/or proprietary information that caused the employer injury, sometimes substantial harm. Though not very often, this has now also occurred on social media sites. One of the Big Three pharmacy chains opened up a Facebook page that allowed comments; the comments section was shut down within days when the majority of messages were complaints or of a derogatory nature made by employees. It being possible that an employee’s complaint can be posted and re-posted where hundreds of thousands, if not millions, might be influenced by its comments, employers have instituted these policies to protect the reputation and good name of their companies.
What little case law out there supports the employer’s right to place restrictions on employees’ use of social media. Lies, unsubstantiated complaints, unauthorized release of information and false allegations have caused real harm. Courts have recognized first, the need for an employee to have certain restraints placed upon him by an employer and second, the right of the employer to protect himself from the wrongful acts of its employees.
After reading over the policy with the pharmacist above, I was then contacted by a pharmacy supervisor who wanted my opinion on whether he could force one of his pharmacists to omit certain comments she (the pharmacist) often mentioned on social media. The problem was that this pharmacist discussed in detail her off-work intake of alcohol. If the supervisor was not exaggerating, she was drinking almost daily, listing the number and types of drinks imbibed. While conceding that this was her business, he had some concerns.
First, what if she and her employer were sued because she made an error? This concern was valid. Social media is not protected speech and thus would be discoverable in a lawsuit; a good attorney would, based on her social media postings, portray her as an out of control drinker and make the jury wonder if she drank on duty. The pharmacist and employer could be open to a significantly larger liability based on these postings.
Second, he asked if the postings could simply reflect poorly on her and her employer in the professional sense. Could he ask her to remove or at least tone down the postings to prevent her “friends” from getting an unprofessional view of her as a pharmacist and of her employer for hiring her? Though not mentioned by the supervisor, I had the additional concern that a future job opportunity might be harmed by a potential employer reviewing her social media site and seeing this “history” of drinking.
So, overall, employers have the upper hand on placing restrictions on the use of social media by their employees. Employers have an inherent responsibility to show some loyalty to the people paying them a salary, and the employer has a right to protect its good name and trade/proprietary information from unauthorized release. As some employees disregard this, employers must take steps to minimize injury that results from those people. Also, as professionals, pharmacists must seek to protect themselves from potential harm by being circumspect in their choice of postings that might hurt the professional image.
Finally, however, a word of protest must be added. Many of these policies are overly restrictive, creating a “Big Brother Is Watching You” atmosphere. These policies need to be scrutinized with a wary eye, as does any policy that infringes on free speech. Few people have actually used social media to blast their employers to the point of being unfair or causing significant harm to the business. It is questionable that employers are using a few “bad apples” to place objectionable restrictions on the whole barrel.