Joseph Talbot worked as a nurse at Desert View Care Center until he was terminated for violating the employer’s social-media policy. In the Facebook post that triggered his termination, Talbot wrote:
Ever have one of those days where you’d like to slap the ever loving bat snot out of a patient who is just being a jerk because they can? Nurses shouldn’t have to take abuse from you just because you are sick. In fact, it makes me less motivated to make sure your call light gets answered every time when I know that the minute I step into the room I’ll be greeted by a deluge of insults.
One of Talbot’s Facebook friends, a nursing professor, reported the post to the employer, expressing concerns about resident safety. Talbot said he was “just venting.” The employer fired him, citing the company’s social-media policy.
Talbot sought unemployment insurance benefits but his claim was denied b/c he was discharged for violating the company’s policy. Talbot appealed and the Appeals Examiner reversed the initial denial decision, finding that he had not been terminated for employment-related misconduct. The employer appealed and the decision was reversed and Talbot was denied unemployment benefits. Talbot appealed to the Idaho Supreme Court.
The high court upheld the denial of benefits, finding that the employer had satisfied each of the three required elements. Most import was the court’s finding that the employer had an expectation that its nurses would not make threatening statements about a patient on Facebook and that Talbot failed to meet the employer’s expectations. Talbot argued that his post was not a threat-it was merely a “rhetorical statement meant to initiate discussion.”
But this argument misses the point. The employer did not claim that Talbot’s post was an actual threat-only that it was “threatening.” There is a difference, it seems to me. “Threatening” language or comments can cause harm, regardless of intent. Personally, if I had a family member who was a patient at Desert View Care Center, I would have had significant reservations about the quality of care they would receive from Talbot. I wouldn’t necessarily think he had made a “threat”-only that his attitude was less than ideal for a caregiver. And the nursing professor who reported the post, apparently, thought so, too.
This is consistent with the First Amendment case law in the context of social-media and Free Speech. When an employer is faced with potential harms arising from an employee’s social-media post, the employer need not wait until those harms actually occur before taking action. Here, Desert Care was not required to wait until Talbot actually neglected a patient who, in Talbot’s opinion, complained too much. The employer can (and should) take action to ensure that the harms do not occur in the first instance.
Was this a tough break for Talbot? Maybe. But would it have been a really tough break for Desert Care if word got around that its nurses gave less attention to patients they didn’t like? Most definitely. And, especially in the health-care context, it’s not merely the employer’s prerogative to prevent bad outcomes but its duty.
For a different take on this case, see Eric Goldman’s Technology & Marketing Law Blog
Talbot v. Desert View Care Ctr., No. 41208 (Idaho, June 20, 2014).