Grumpy ex-employees in the age of the internet
Christopher J. Allen, DVM, JD
Christopher J. Allen, DVM, JD is president of the Associates in Veterinary Law P.C., which provides legal and consulting services exclusively to veterinarians. He can be reached via e-mail at email@example.com. Dr. Allen serves on dvm360 magazine's Editorial Advisory Board.
A nondisparagement clause might keep that toxic team member you fired from badmouthing your veterinary practice all over social mediaif its legally enforceable.
Don't let an internet comment like THIS be your legacy as a veterinary employer. (Shutterstock.com)
When we were kids and faced with a bully, we used the phrase, “Sticks and stones may break my bones, but words will never hurt me.” But when we were kids, none of us owned veterinary clinics-and there was no Facebook.
In life before the internet, defamatory words uttered by former employees rarely did us or our practices much harm. Today, however, social media and its underlying technology are developing at a rate far greater than the government's ability to police it as slander or libel. So hurtful and damaging commentary, regardless of its truth or accuracy, is published with relative impunity (and often anonymity).
For example, when I bought my first clinic, an unhappy employee who felt either underpaid or unappreciated-or both-would quit and then tell her friends, her hairstylist and maybe a bartender or two just how awful I was to work for. Today, that same employee has a virtual one-person TV station from which to broadcast negative and damaging commentary online. Then the veterinary practice is faced with a tough decision-to engage with the employee in a time-consuming war of back-and-forth posts or to leave the disparaging comments “out there” interminably available for viewing by any potential new client (or new hire).
For veterinarians, both practice owners and associates, the economic damage caused by such negative comments from a former employee can be dramatic. It costs both time and money to cultivate new workers and replace clients when social media activity results in reputation damage. A substantial reduction in gross clinic revenue can result. And as revenue drops, not only does the practice owner get hurt, but jobs (including DVM jobs) can cease to exist.
And frequently, the most serious financial damage is suffered by the associates. Doctors paid on production are hit particularly hard when business drops off due to internet-based damage to their clinic's reputation.
Contract clauses keep associates quiet ...
How have employees been prohibited from spreading derogatory comments about their former employers in the past? In ancient times (when I was a kid), clinic employees kept their post-employment opinions to themselves out of something called “professional courtesy.” Exiting workers didn't want to hurt former friends and co-workers or impugn the reputation of the clinic's doctors.
Then, in the more recent past, workers were tight-lipped about their prior employers because they feared a negative “recommendation” when they went about searching for a new veterinary clinic position elsewhere. That disincentive effectively collapsed when, due to fear of being sued, most former employers quit providing any opinions at all about a former employee's motivation or skill.
Today, prevention of post-employment disparaging speech is going down two very different roads. While numerous veterinary practices (especially corporate-run practices) include “nondisparagement clauses” in their veterinary associate contracts, very few hospitals do anything to prevent former nonveterinarian employees from publishing defamatory language to the public about a former workplace.
Associates have become accustomed to seeing this language in their proposed employment agreements, along with the usual noncompete and nonsolicitation clauses and other prohibitions. How to avoid trash talk by a former non-DVM employee is much less clear.
... but what about the rest of the veterinary team?
Ordinarily, veterinary clinics don't have formal contracts with non-DVM staff members, and any published behavior guidelines are usually confined to the employee handbook.
While employee handbooks have their place, they are not a substitute for a written employment contract, the terms of which are unique and specifically consented to through the signature of both employer and employee. Yes, employees are often required to sign their employee manuals, but the exercise is more to indicate that the employee has “acknowledged receipt” of the document than any agreement to accept personal liability for behaving contrary to the manual's terms. So the employee handbook sets forth what a rank-and-file employee can be reprimanded or fired for doing, but it usually doesn't provide a legal cause of action by the employer against the employee when and if a prohibited behavior by a worker occurs.
OK, so do I use them or not? ... let's see ...
The power (or lack of power) of nondisparagement clauses
Whether nondisparagement clauses will become standard is up in the air, with different judges expressing a wide variety of opinions regarding the appropriateness and enforceability of this sort of written prohibition on post-employment speech.
We know two things for certain. First, the legal community is traditionally hesitant to burden relatively low-paid employees with pre-employment hurdles. When a job seeker is required to sign an agreement limiting his or her speech prior to beginning work, legal authorities are likely to look carefully at the requirement. If the business can't demonstrate a strong need to protect a legitimate business interest in obligating new hires to sign nondisparagement agreements, it's likely not to be enforced.
Second, various state and federal statutes already protect the speech of both current and former employees. Those laws must be taken into careful consideration in the drafting of a lay worker nondisparagement agreement.
How your nondisparagement agreement might pass legal muster
Before jumping in and crafting your own receptionist or office manager nondisparagement document, consider these tips:
- Limit the prohibition. The more limited the prohibition, the more likely it is to be enforceable-say, limiting to electronic means. This leaves chats at the hair salon and complaining to friends alone while possibly offering protection against toxic Facebook groups.
- Keep the damages low. Establish a relatively low “liquidated damages” amount that a departing employee would pay if found by a court to have disparaged your business. If the figure is substantial to the employee but within the jurisdictional limits of your small claims court, it may offer a greater deterrent than if you were required to sue the employee on the agreement in a traditional trial court.
- Keep your house in order. If the employee signs the nondisparagement agreement then says on the internet that you throw your medical waste in the trash, there's not much chance of recovery against that employee-if the negative information is true.
- Remember that the law protects certain potentially disparaging language on the part of an employee. For example, statutes exist both at the federal and state levels to protect employee speech associated with: applications for workers' compensation coverage, certain labor law litigation, applications for unemployment benefits, retaliatory behavior on the part of an employer or former employer, and statutory and common-law “whistleblower” protections.
- Consult an attorney. A knowledgeable lawyer can guide you through compliance with your state's specific laws as they apply to hourly and noncontract salaried employees.
Christopher J. Allen, DVM, JD, is president of the Associates in Veterinary Law PC, which provides legal and consulting services exclusively to veterinarians. He can be reached via e-mail at firstname.lastname@example.org.