Free Speech Blog (2) 11.24.15 recently posted an interesting opinion piece concerning the use of social media and its connection to free speech in the workplace. The post was written by Ann Twomey, the president of Health Professionals and Allied Employees (“HPAE”), and it is set forth below.

Unless you have a union, the fundamental principle of free speech can end at the door of your workplace.  For non-union workers, any form of communication, including bringing legitimate issues to the public, is often met by threats or punishment through harsh and sometimes illegal policies limiting speech.

More and more companies, including healthcare companies, are creating policies that limit their workers’ speech. Sometimes that speech is private between co-workers or friends; sometimes it becomes public, through protest, whistleblowing or social media.  Workplace policies are becoming increasingly restrictive,  though protecting our free speech rights – even our right to complain – should be fundamental. It is particularly vital in health care, since limiting a healthcare professional’s rights to speak up about unsafe condition can have a detrimental impact not only on the worker, but on the patients and quality of services provided.

Facebook, LinkedIn, Twitter and other forms of social media have become the way in which many of us express our opinions, as well as share our family news.  More than two-thirds of Americans use social media sites.   Globally, Twitter has 230 million active users, posting 500 million Tweets a day – while more than 70 % of all USA internet users are on Facebook.

As a result, the conflict between an employer’s attempt to protect its reputation and an employee’s right to speak up is being fought in these very public arenas.  In New Jersey, counties, school districts and private employers have disciplined workers for their use of social media – and have also been sued by their employees for actions taken against their social media use.  There are hundreds of law firms and consultants advertising and interpreting the law on what is and is not allowed within employer social media policies.

Recently, Registered Nurses at Meridian Health leafleted the community, addressed town councils, posted billboards and used social media like Facebook and Twitter to press for safe staffing levels in their workplace contract.  Nurses posted pictures of themselves holding signs with messages like “Nurses Keep Patients Safe’.

The posts didn’t go over well with Meridian managers who told nurses that the posts violated the hospital’s social media policy. Overly broad and unreasonable restrictions on speech such as these policies could have had a chilling effect, stopping nurses from speaking up when they believed patient care is compromised, or when staffing levels are unsafe.

The hospital’s reaction wasn’t unique, but because the nurses’ were unionized, it didn’t end there.   HPAE nurses found that the hospital’s social media policy was filled with language violating nurses’ rights and they filed a complaint with the National Labor Relations Board (NLRB), the federal agency that oversees workplace rights.

In a series of recent decisions, the NLRB has found company social media policies unlawful because they interfere with employees’ right to act collectively, which are protected acts under the National Labor Relations Act.

It’s important for workers to know the limits of their rights, and the extent to which their employers will search their personal social media accounts. Many employers continue to attempt limiting social media in an effort to censor postings they just don’t like.   And that should be unacceptable to all of us.

As part of their contract settlement, Meridian Health agreed to bargain with HPAE over the social media policy so that it no longer violates employee rights.  Without their union, both the voice of nurses and of patients would have been unprotected.

Nurses and healthcare workers know it is essential to protect the privacy rights of their patients in their communications, and to refrain from harmful or discriminatory speech.  They don’t want to harm their employers – but they do want solutions to unsafe staffing levels, or unsafe working conditions.

Instead of banning speech, I suggest hospitals listen to their nurses and health professionals, and seek solutions to the problems they raise.

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Photo of Michael DeRose Michael DeRose

Michael P. DeRose is a shareholder at the firm and primarily focuses his practice in labor/ employment law and other aspects of civil litigation, such as contract disputes. He has litigated and tried hundreds of matters before the Superior Court of New Jersey…

Michael P. DeRose is a shareholder at the firm and primarily focuses his practice in labor/ employment law and other aspects of civil litigation, such as contract disputes. He has litigated and tried hundreds of matters before the Superior Court of New Jersey, the Office of Administrative Law and the New Jersey Public Employment Relations Commission on behalf of various labor unions and their members. Michael has extensive experience defending and fighting for members of law enforcement and other public employees facing adverse disciplinary action, such as termination or suspension from employment. He also frequently argues before New Jersey’s Appellate Division on behalf of his clients.

A large portion of his practice is also devoted to contract negotiations on behalf of union clients, representing such clients in grievance arbitration/ contract disputes, and otherwise advising union leaders on labor and employment matters.  Michael also has significant experience in the realm of interest arbitration on behalf of the firm’s law enforcement and firefighter unions. As a result of the firm’s robust labor and employment practice, Michael regularly appears before various state agencies, such as the New Jersey Civil Service Commission, the New Jersey Division of Pensions and Benefits, the State Health Benefits Commission, and NJ PERC. In addition to representing labor unions and active employees, Michael also represents retirees before the Division of Pensions in disability retirement applications, both ordinary and accidental disability retirement, in pension forfeiture actions, and in other miscellaneous pension disputes. He also counsels private business and their principals in contract and employment law, in addition to representing their interests in civil litigation. Michael has a track record of obtaining favorable outcomes for his clients and treats each everyone of them on an individual and particularized basis in accordance with their needs.

Before joining the firm in August of 2015, Michael was an associate counsel at a civil litigation firm out in Trenton, New Jersey, where he principally focused his practice around employment law and tort claims litigation. Prior to that, he served as a law clerk in the Superior Court of New Jersey for the Honorable F. Patrick McManimon, Mercer County Vicinage, from September of 2012 to August of 2013, where he attained significant experience in the realm of alternative dispute resolution having mediated well-over one-hundred cases, primarily related to commercial and residential landlord/ tenant disputes and contract/ business litigation. He earned his Juris Doctorate in 2012 after graduating from the Western Michigan University-Thomas M. Cooley School of Law. In 2007, he earned his Bachelor of the Arts in Criminal Justice and Public Administration from Kean University where he was a member of the Kean University baseball team and vice president of the Alpha Phi Sigma chapter of the National Criminal Justice Honor Society.

Michael is admitted to the New Jersey State Bar, the United States Federal Court for the District of New Jersey, and is a member of the Mercer County Bar Association.