Nursing Home Sued for Imposing a Visitation Ban for Social Media Posts

Children of a nursing home patient recently filed a lawsuit against their mother's nursing home for banning them from the facility for their social media posts. The lawsuit claims that the nursing home sent a letter to the children offering to restore their visiting privileges if they “agree to immediately remove all pictures, videos, blogs, comments, articles, postings or other invasive and/or exploitive content depicting or relating to Ruby Peterson and/or any other resident of Silverado Senior Living – Sugar Land immediately.”  The letter also required the children and their attorney to “further agree to refrain from creating any additional pictures, video, blogs, comments, articles, postings or any other exploitive content depicting or relating to Ruby Peterson and/or any other resident of Silverado Senior Living – Sugar Land, assisting or encouraging others to post such content and providing others such content until the conclusion of all legal issues between the parties by settlement agreement, judgment or otherwise” in a separate case where the children are fighting to remove their mother from the facility.

The lawsuit claims that the revocation of their visitation rights was an unconstitutional retaliation in violation of their First Amendment rights and the ADA.  The children ask the court to award them compensatory damages up to $500,000 for "severe mental and emotional distress and anxiety and bodily pain and suffering" and punitive damages.

Employees' Facebook Discussion Protected by Labor Laws

On August 22, 2014, the National Labor Relation Board issued a new decision involving employees and social media.  In Triple Play Sports Bar & Grille, 361 NLRB No. 31 (2014), the NLRB ruled that a Facebook discussion regarding an employer’s tax withholding calculations and an employee’s “like” of the discussion constituted concerted activities protected by the National Labor Relations Act (“Act”).  The Board also held that the employer’s internet and blogging policy violated the Act.

In 2011, at least two employees discovered that they owed more in state income taxes than they expected.  Employees discussed the situation at work and complained to their employer, Triple Play.  Prior to a staff meeting to discuss the employees’ issues, a former employee posted the following “status update” to her Facebook page:

Maybe someone should do the owners of Triple Play a favor and buy it from them.  They can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!

Several Facebook friends posted comments in response to the status update, including two of Triple Play’s employees.  One employee commented, “I owe too.  Such an asshole.”  A second employee “Liked” the former employee’s status update, but posted no comment. 

When Triple Play discovered that two of its employees had participated in the Facebook discussion, it fired them.  The employees challenged their termination, and the NLRB ruled in their favor, finding that the employees were engaging in activities protected by the Act.  According to the NLRB, the employees’ comments and "like" in response to the Facebook post constituted a dialogue among employees about working conditions that was protected by the Act. The NLRB determined that the evidence did not establish that the discussion was directed to the general public. Although the record did not establish the former employee’s privacy settings on Facebook, the NLRB noted that the comments were posted on an individual’s personal page rather than a company page providing information on its products or services. The NLRB concluded that the employees’ comments were not "so disloyal as to lose the Act’s protection" because they did not disparage their employers products or services, or undermine its reputation. The Board also held that the comments were not defamatory, but simply a statement of a negative personal opinion of Respondent’s owner.

The NLRB also found that the employers’ Internet/Blogging policy in the employee handbook violated the Act because it was overbroad and unlawfully chilled employees in the exercise of their section 7 rights. The policy warned that "engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment."

Employers need to tread carefully in disciplining employees for their social media activities, as we have reported before.  They should also review and update their personnel policies to make sure that they are not inadvertently “chilling” their employees protected rights.

Delaware Adopts Law Allowing Social Media Accounts to be Inherited

From the ABA Journal:  Delaware is first state to adopt model law that says social media accounts can be inherited.

When individuals die, their social media accounts often expire along with them.  Even if their loved ones have the passwords, terms of use for Facebook and other providers routinely restrict account-sharing.  Delaware became the first state to address these legal issues by adopting The Uniform Fiduciary Access to Digital Assets Act, which recognizes social media accounts as property and provides for executors and heirs to get passwords. 

 

Individuals can also restrict access to their social media accounts, providing in their wills that heirs cannot open or change the accounts, the newspaper reports.

Upcoming Social Media Webinars for Government Officials/Employees

Attention government officials and employees - you might be interested in the following upcoming social media webinars:

Tuesday, July 8th, 2:00 p.m. EDT - 5 Steps to Creating Awesome Social Media Content for Government (even if you have no time or team), presented by Kristy Dalton (aka GovGirl).  

This webinar promises to be especially helpful for those public sector one person social media teams!  Registration link: 5 Steps to Creating Awesome Social Media Content for Government (even if you have no time or team)

Monday, July 21st, 2:00 p.m. EDT -  Search Engine Optimization (SEO) for Government and Public Sector, presented by Luke Stowe.

This webinar will present the new changes from Google's Panda 4.0 release in May as well as discuss the increasing importance of government agency's social media presence which impacts its constituent's search results.  The webinar will also cover available SEO tools and resources. Registration link: Search Engine Optimization (SEO) for Government and Public Sector

Professors Sue University in Blog Case

Two professors at Chicago State University recently filed a lawsuit against the University, claiming that officials illegally targeted the CSU Faculty Voice blog.  The two professors state in their federal lawsuit that they are the founders of the blog, where they and other contributors post about University policies and issues.  The professors acknowledge that their postings are often critical of the University, and claim that the University has "engaged in an ongoing campaign to silence" their right to free speech.  They also claim that the University's actions against the bloggers amount to "cyberbullying" against the University's policy that protects students.  The professors claim that the University sent a cease and desist letter demanding that the bloggers remove copyrighted material, and demanded that the blog remove the University's name and images.  

ACLU Sues City for Shutting Down Mayor Parody Twitter Account

In March of this year, a Twitter account was established in the name of @peoriamayor.  Peoria Mayor Jim Ardis's photograph was used as the account "avatar."  The account's biography read "I am honored to serve the citizens of our great city."  

The problem?  Neither Mayor Ardis nor any other City official or employee had anything to do with the @peoriamayor account.  Instead, the Twitter account was established by Jon Daniel, a 29 year old resident of Peoria, who posted a series of tweets about the Mayor using drugs and associating with prostitutes.  When the City learned of the Twitter account, it contacted Twitter and the account was shut down shortly thereafter, according to news reports.  

Just last week, Mr. Daniel (with some help from the ACLU) filed a civil rights lawsuit against the City of Peoria, Mayor Ardis, and a number of other City officials claiming that the City and officials conspired to violate Mr. Daniel's constitutional rights.  The complaint alleges that the City violated his First Amendment rights, as well as his Fourth Amendment rights when police searched his home and seized his computer and other property as part of its investigation of potential criminal conduct in impersonating a public official (the States Attorney declined to prosecute Mr. Daniel). Mr. Daniel asks that the court enjoin the city from engaging in future conduct that suppresses his freedom of speech rights and requests an award of unspecified compensatory and punitive damages.

Patient Sues Hospital After Her Medical Records are Posted on Facebook

A former patient sued the University of Cincinnati Medical Center, claiming that hospital workers posted her medical records on a Facebook page after she was diagnosed with a sexually transmitted disease.  She alleges that two hospital employees were persuaded by her ex-boyfriend to post her medical records on the Facebook group page called "Team No Hoes."  The medical records included the plaintiff's syphilis diagnosis, and were followed by comments that referred to the woman as a "hoe" and a "slut."  Plaintiff seeks damages from the hospital, as well as improved hospital procedures for protecting confidential patient information.

Hat tip to the ABA Journal for reporting on this case, filed Tuesday.