Written By:  Ana S. Salper

Social media has revolutionized how we communicate with one another. From Facebook to Twitter, YouTube to blogs, social networking sites have permeated the workplace in ways that have significant implications for all employers.

Social media is both a source for marketing and promoting companies and products as well as an enterprise risk factor if not used appropriately or in a compliant way. In the health care industry, with the Health Insurance Portability and Accountability Act (“HIPAA”) and other privacy laws at stake, employers must have a heightened sensitivity to ensuring that confidential health information is protected, while simultaneously being mindful of the precise contours of what restrictions on social media usage are permissible and lawful. Also, for pharmaceutical and device firms, where promotion is highly regulated by the federal Food and Drug Administration (“FDA”), there are likely even greater compliance concerns.

To date, no governmental body – not even the court system – has been more active in addressing social media’s impact on the workplace generally than the National Labor Relations Board (“Board”). The Board’s reach has extended to non-unionized employers and to those that are unionized. In what has now become the famous “first Facebook case,” the first social media complaint issued by the Board was, in fact, against an employer in the health care industry, a leading medical transportation company. That October 2010 case, involving the discipline of an employee for posting derogatory comments about her supervisor on Facebook from her home personal computer, established the foundation for the Board’s two areas of scrutiny: employer discipline of employees’ social media site usage, and the appropriate scope and breadth of employer social media policies.

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