Everyone uses social media. Many businesses enjoy free publicity via Facebook, Twitter, and Instagram. Many employees make their private lives public on social media platforms available to anyone with a computer or smartphone. This may never become a problem, but when an employee violates the employer’s prohibitions or restrictions on social media use, there could be trouble in River City.

Earlier this year, a Florida healthcare worker named Rodney Jones was fired from his job as activities director of a long term care facility. Jones oversaw five assistant activity directors, decorated the building for holidays and events, maintained calendars, charts and care plans, and oversaw outings, parties, and recreation for patients. Jones also headed Accentia’s volunteer program.

According to Accentia, the reason for Jones’s termination was his abuse of Accentia’s social media policy. Jones had undergone shoulder surgery and, during his recuperation, received an extension of leave because his treating physician wanted him to continue physical therapy.  Jones was not medically cleared to return to work.  Jones twice visited Busch Gardens theme park in Tampa while he was on FMLA leave.  During Jones’s 30-day non-FMLA medical leave, he visited the island of St. Martin for three days. He posted pictures and updates about his time in St. Martin on his Facebook page, including a picture on the beach, posing by a boat wreck, and a picture of him wading/swimming in the ocean. At some point before the exhaustion of Jones’s 30-day non-FMLA medical leave, management at Accentia Health learned that Jones was posting pictures and updates of his St. Martin trip while on medical leave.

In January 2015, Jones’s doctor completed an FMLA fitness for duty certification stating that Jones could return to work. When Jones returned to work, he met with an Accentia representative who showed Jones the Facebook pictures he posted of his trip to St. Martin and the pictures taken at Busch Gardens.  Accentia suspended Jones pending an investigation and then terminated him “due to the poor judgment [Jones] exhibited as a supervisor and the negative impact that his Facebook posts and text messages had among the associates as Accentia.”

The signed Social Media Policy provided that “I understand that Social Media usage that adversely affects job performance of fellow associates, residents, family members, people who work on behalf of Gulf Coast Health Care or violates the HIPPA privacy law may result in disciplinary action up to and including termination.”

When Jones challenged his termination in court, stating he believed Accentia had retaliated for his taking medical leave, Accentia’s defense was that Jones violated the company’s social media policy. The trial court ruled in Accentia’s favor, giving a boost to the message that every company needs a social media policy:

“Plaintiff does not show that he was fired for exercising his right to take FMLA leave. Plaintiff’s actions while on FMLA . . . and on non-FMLA [leave] led to his termination. There is no evidence that Plaintiff was retaliated against for requesting and taking FMLA leave. An employer may terminate an employee for a good or bad reason without violating federal law. [Courts] are not in the business of adjudging whether employment decisions are prudent or fair.  Plaintiff has failed to show causation and his FMLA retaliation claim fails as a matter of law. Because Plaintiff has not established a prima facie case of retaliation, the analysis ends and Accentia Health is entitled to summary judgment on the FMLA retaliation claim.”

To minimize potential exposure in these circumstances, a company’s social media policy should:

• Clearly state prohibited and acceptable conduct;
• Encourage employees to use good judgment;
• Define the consequences of inappropriate posting; and
• Educate employees regarding social media.

Readers should note a rapidly expanding list of cases in which employees lose their jobs due to inappropriate or unethical social media use. It is imperative for employers to convey to all employees that, where social media is concerned, the same rules that govern the workplace also apply to the internet. This includes prohibited acts of discrimination, hostile work environment, retaliation, bullying, health code violations, illegal activities, and fraud.  Employers should act swiftly and for good cause shown when violations are brought to their attention.  Employees should immediately report violations to HR or a manager.

Employment law is complex, and employees are often poorly advised or misinformed. If you are in need of legal advice or representation regarding any aspect of employment law, please contact one of our employment law attorneys at Hanan M. Isaacs, P.C. Call our offices today at 609-683-7400 or contact us online to schedule a reduced fee initial consultation at our convenient Somerset County location.  You will be glad you did.