Written by Virginia Herschell, VP, Applied Discovery
In a swirl of continuing controversy, a healthcare provider in Pennsylvania terminated an undisclosed number of its professional staff for Facebook postings that may, or may not have, violated HIPAA. Pennsylvania is an "at will" employment state where an employer may terminate an employee (barring an employment or union contract to the contrary) for any legal reason. There is no "good cause" standard - it can be for any reason as long as that reason is not illegal (such as gender, race or religious affiliation). Accordingly, it isn't necessary for the healthcare provider to demonstrate that HIPAA was violated in concluding that the postings were damaging to the reputation of the organization or undesirable on some other level.It appears that the employer blocked all social media internet access from the computers provided in the workplace, but some of the offending posted replies may have occurred from mobile devices while the terminated employees were at work. Employees have indicated that the organization did not have a social media policy included in its handbook until the handbook was amended after the terminations.The official public statement represented that the organization had social media monitoring in place, whereas numerous insider postings to the news story alleged that it was a 'friend" from the Facebook account that reported the original posting and the posted responses from other work colleagues. Does it really matter? No - you can't expect privacy for any communication posted to a website no matter how restricted your circle of friends may be.There is no "good" result for any of the parties caught up in this series of Facebook related terminations. The healthcare provider may have lost excellent caregivers who were venting inappropriately or who had a professional disagreement with care given to a particular patient. Posts to the local news site indicate several of the terminated employees have hired legal counsel and wrongful termination claims will continue to divert resources of the healthcare provider and be a continuing distraction to management and employees.No organization wants to lose valued employees over undesirable conduct that had not been fully considered and communicated to its employees. Employers can't ignore the exponential growth of participation on social media sites and the proliferation of other instant communication applications. It is incumbent upon in-house counsel to put cogent social media policies and employee training at the top of organization's legal agenda. Virginia Henschel is Vice President of E-Discovery Affairs for Applied Discovery, where this article was first published. In this role, she advises clients on best practices for litigation readiness for e-discovery, including data mapping, database development, litigation hold notices, meet and confer preparation and managed reviews. Ms. Henschel previously served as E-Discovery Counsel for Sunoco, Inc., specializing in multi-district, complex litigation. Prior to joining Sunoco, Inc., she served as Assistant General Counsel for a global Fortune 500 corporation where she managed global risk and litigation.