Issue link: https://viewer.e-digitaledition.com/i/89174
law privacy claims — which were uncommon in traditional employment lawsuits. Because of their novelty, the courts have not yet developed uniform approaches to analyzing and deciding on such claims. Therefore, employers would be wise to proceed cautiously and with the assistance of experienced legal counsel before disciplining or terminating employees based on post- ings in social media. What if you simply asked applicants and employees to give you access to their social media accounts? That approach can also be problematic. Following are five key reasons not to do so: 1. It is illegal in some states, and others may follow suit. Illinois and Maryland ban employers from requesting passwords and other social media information from employees and applicants. Other states may consider similar legislation. 2. You may not really want to know. Even when accessed legally, once information is gained, an employer is charged with that knowledge and prohibited from using it to discrimi- nate unlawfully. For example, suppose Dr. Jones, an OB/GYN, decided to pre- pare for medical assistant interviews by searching all of the candidates' public Facebook profiles. She views Ms. Clark's profile, whose profile photo shows her "Over the Hill" birthday party at the Knights of Columbus hall. If Dr. Jones chooses another candidate over Ms. Clark and a discrimination claim follows, the burden will be on Dr. Jones to prove that the failure to hire was not based on her discovery that Ms. Clark is a 50-year-old Catholic. 3. You may get more responsibility than you bargained for. Physicians may understandably want social media access to protect their professional and business reputations. But you may have to protect more than you intended. Suppose an employee posts threats of violence to coworkers? What about an employee harassing another about workplace conduct? If you fail to notice or act, you might be found negligent and liable for the consequences. 4. The National Labor Relations Board (NLRB) may disagree. The NLRB recently brought enforcement actions against employers for violating workers' rights to associate to improve wages or conditions through Facebook. Think twice before disciplining an employee for discussing work condi- tions on social media. Granted, a post such as, "Dr. Adams is a loser boss," may not be protected. But, "My boss' sexual jokes make me uncomfort- able — if you agree 'like' this post so we can work to expose him," is probably protected. 5. Government a l ent it ie s : Remember the First Amendment. Public employers cannot limit their employees from speaking on topics of public concern. Governmental entities must be careful about restricting or punishing social media speech. Despite the risks, some employers will continue demanding access to social media accounts. If you are one of them, develop policies and procedures tailored to your practice that treat all employees even-handedly. And before making hiring, disciplinary or termination decisions based on social media postings, consult experienced legal counsel. Cynthia Ell i s Rosen and Kat ie Anderson are coauthors of this article and members of the Litigation Practice Unit of Strasburger & Price, LLP. Both Rosen and Anderson are experienced in employment law litigation. Rosen is located in the firm's San Antonio office and can be reached at (210) 250-6062. Anderson is located in the firm's Dallas office and can be reached at (214) 651-4685. ■ You are invited! Preventing Cyber Fraud in Your Medical Practice Cybersecurity threats targeting health care networks, mobile devices, servers and EMRs are on the rise. Hear from top professionals about ways to help protect your practice from cyber fraud, both internally and externally. Wednesday, October 24, 2012, 6 - 8 p.m. | Paesanos on 1604 3622 Paesanos Parkway | San Antonio, Texas 78231 RSVP by calling 210.495.1733 or sending an email to linda@elliottconnection.com Complimentary hors d'oeuvres & wine MDNEWS.COM ■ MD NEWS San Antonio | 15