As individuals become more engaged with social media in their professional lives, employers are increasingly recognizing the need to address new challenges with respect to protecting their brand and commercial interests. Though it’s tempting to develop one-sided, draconian approaches, they are not usually in an organization’s long-term best interests. This post offers recommendations for developing a pragmatic, balanced approach to articulating the relative rights and responsibilities of employers and employees when it comes to their social media “property” and activity.
Recently, Workforce magazine published an article focused on the portability of social media connections, particularly when recruiters part ways with their employers (Special Report on Social Media: You Can’t Take Your Online Contacts With You ... or Can You?). The article reminded me that I’ve had my own post brewing about the relative rights and responsibilities of employers and employees when it comes to their social media “property” and activity. For some perverse reason, I have a strong interest in the legal issues related to social media and have been tracking them closely for some time. I am not an attorney, however, and the perspectives I offer should not be construed as legal advice.
I’ll start by sharing a few thoughts on the Workforce piece and then provide general and specific recommendations for employers. My ideas are not necessarily exhaustive, and I encourage others to share their points of view, relevant resources and examples, as well as questions and answers. I especially welcome contributions from people outside the US, since my knowledge is generally limited to this legal environment.
Thoughts on the Workforce Report
Contrary to the implications in the report, I think there are some existing legal precedents on the issues they discussed. In Sasqua v. Courtney, for example, a federal court determined that LinkedIn contacts did not constitute trade secrets (see this and this for more details). In addition, though they've not yet been decided, there are a couple cases now pending that demonstrate how existing laws – the Lanham Act in these cases – can be applied to social media spaces. The first case relates to an employer continuing to communicate via an employee’s accounts while she was recuperating from an accident (see this and this for details), and the second relates to ownership of a Twitter handle (details here). Another case that may have precedential value is a recently-decided case about cybersquatting (click here and scroll down for details).
General Recommendations for Employers
Here are some of my thoughts on the best way for employers to approach the new challenges that social media has generated, particularly with respect to its brand and commercial interests. These ideas build on the comments I (and others) shared last fall in response to this post, in which an attorney recommends a rather draconian approach to non-compete agreements and trade secrets.
A good general rule to follow is that while an individual is employed by a specific organization, he/she is effectively an agent of that organization (click here to read about the law of agency). Therefore, the employer has a right to dictate certain things that relate to the individual’s employment and/or his/her activity. Those rights are not unlimited, of course: they must conform to existing laws and regulations (e.g., the National Labor Relations Act (NLRA), guidelines from FINRA), as well as employment policies and agreements. Once an individual’s employment ends, an employer’s rights generally only continue through the restrictive covenants included in certain employment agreements, as well as general laws such as defamation.
But legal considerations are only one aspect of risk management. Employers must also consider business and reputational risks. Here are a few recommendations along those lines:
- Consider employee morale and the desire to be an “employer of choice.” The more one-sided and draconian an employer’s approach is to determining and communicating the relative rights and responsibilities of employers and employees, the more it is likely to alienate employees, reduce engagement, decrease loyalty, increase turnover, etc. Conversely, demonstrating consideration of the employee perspective can have a strong positive human capital management effect.
- Take a long-term, relationship-oriented view rather than a short-term transactional view. Rather than viewing employee termination as the end of a relationship, it’s better to view it as a transition to a new relationship. An alum could become an employee again, or a key customer, a supplier, a business partner. He/she may serve as a great resource for candidate and client referrals or other valuable information/contacts. And at a minimum, he/she has the freedom to speak about his/her employment experiences, choosing to either promote or disparage the organization and its products/services.
- Remember that rules can impact other stakeholders besides employees. Suppliers, clients, partners and other stakeholders form relationships not just with an organization, but with its representative employees. How departures of those employees are handled can impact those relationships. When they’re characterized by secrecy, punitive approaches and a lack of trust, they can damage an employer’s reputation, standing, and future business prospects.
- Respect both employer and employee brands. We’re well past the era of “lifetime employment,” and most all individuals recognize that they must manage their own career and professional brand. Knowing there are no employment guarantees, employers must respect and support their employees’ rights and ability to pursue and find work in the future, even when they’re currently employed.
Using these considerations as a guiding force, employers should:
- Update/create relevant policies and guidelines. As I discuss in this post, employers need to review and update all of their policies to ensure they reflect Digital Era realities and provide proper risk management. Specific policies related to the issues discussed here include those that address trade-secrets, intellectual property, etc. In addition, if the organization doesn’t have a social media policy and/or guidelines, it needs to create them; however, as I discuss in this post and others, the policy must comply with existing laws such as the NLRA.
- Update non-compete and non-solicitation agreements. In addition to updating their policies, employers also need to update their non-compete and non-solicitation policies to reflect digital realities, risks, and activities.
- Determine terms of ownership for specific organizational accounts on social media platforms. Ideally this would be done before an account is opened, but agreement should be reached on all accounts as soon as possible. I discuss specific stipulations in the next section.
Here are some specific recommendations on the “Big Three” social media platforms, plus a few general comments on blogging. As evidenced by the notes on blogging, there’s an underlying set of principles that can be applied to various platforms and an individual’s activity therein. Relying on those principles can help both individuals and employers determine where the lines should be drawn on other sites like YouTube, Flickr, Tumblr, Quora, FourSquare, etc.
- Individual profiles: Each individual “owns” his/her own profile. While he/she is employed by a specific organization, however, the employer has a right to dictate what gets included in it, but those requirements should be limited to the individual’s current employment. For the sake of consistency and brand protection, employers should provide all employees with guidelines about how they should represent themselves, the organization, and their jobs, paying particular attention to the profiles of leaders and externally-facing employees (e.g., business development folks, recruiters).
- Contact information: LinkedIn allows people to have multiple email addresses, and they specifically recommend that everyone include both a personal and a professional address. I further suggest that people make their personal address their primary address, and select personal/professional addresses for specific activities, as appropriate (e.g., selecting where to receive group messages).
- Contacts: As noted above, employers can argue that any contacts made during an individual’s employment are the “property” of the employer, but that’s not a very pragmatic position to take. A more practical approach may be to recognize that it’s joint property. Allow employees to connect with people via LinkedIn at will and keep their connections post-employment. At the same time, employers should have an internal system for capturing relevant information about prospects, clients, candidates, suppliers, partners, and whatever other relationships may be covered by employee agreements. Then, if/when the employment relationship ends, there’s no need to divide up the assets. (NOTE: maintaining individual connections does not nullify employment agreements; they can still be legally bound to restrictive covenants).
- Groups: This is another area in which a balance must be struck. Employers may provide rules/guidelines about what groups an individual can join, but only to the extent that they relate to his/her employment/role. For example, a plastics manufacturer can require certain employees join a group for the Society of the Plastics Industry, but it should have no say in whether an employee joins a professional or alumni group. If an individual starts a group on behalf of an organization, additional managers should be added to allow for smooth transition of the management of the group if/when the initial owner leaves.
- Comments: The social media policies and guidelines I referred to earlier should address whether and how employees can comment on a variety of social media sites, including LinkedIn. Generally speaking, when individuals make comments in groups, ask or answer questions, or create/comment on polls, they should clarify whether they’re speaking on behalf of their employer and (more importantly) when their views are their own.
- Recommendations: Many employers have “no recommendations” policies that probably need to be updated to include LinkedIn (and other platforms). In the absence of such a policy, employers should still create guidelines about what is/is not acceptable for current employees.
- Organizational accounts: Many social media advocates recommend personalizing Twitter engagement by having individuals tweet/interact on behalf of organizations rather than having anonymous corporate handles. A good balance is to have relevant individuals create handles that reflect both their individual and corporate identities. Employers should also make clear that the account and its followers are all the property of the organization, not the individual. If/when the employment relationship ends, the Twitter handle can easily be changed to reflect a new identity. This can get tricky, however, when individuals start to gain a following based on their individual personalities (see this story, for example, about Rick Sanchez and CNN), which may require developing an alternative approach to dissolution/transfer that reflects the co-branding.
- Personal accounts: Generally speaking, it’s probably best if individuals dissociate themselves from their employer in their Twitter profile. At a minimum, they should include a disclaimer that the views they express are their own. The employer’s social media policies and guidelines should also specify whether and how the individual can refer to the organization and its brands in their tweets.
- Personal profiles: Because individuals primarily use Facebook for personal rather than professional purposes, employers probably have no say over what gets included in their profile.
- Privacy settings: Employers can’t dictate an individual’s privacy settings, but it’s in both their and their employees’ best interests to educate individuals how they work and provide general guidance.
- Activity: Irrespective of an individual’s privacy settings, the employer’s social media policies and guidelines should specify whether and how the individual can refer to/represent the organization and its brands in their status updates, comments, photos, videos, etc.
- Connections: Employers should update their policies to extend them to digital spaces where necessary and appropriate. For example, if an organization has a fraternization policy, that policy should be modified to include Facebook. In the absence of a policy, employers should at least consider providing education and guidance for connections, similar to what they would offer with respect to privacy settings.
- Pages and groups: It’s a quirk (at best) of Facebook that all pages and groups be created by and attached to an individual profile. Although it is a violation of Facebook’s terms of service for an individual to create more than one profile (another quirk), I think it may be possible for an organization to create a “corporate” identity/profile and use that identity to establish its pages and/or groups. Even if an official presence has been created by an individual, there should be multiple administrators so that ownership of a page can be maintained if/when one of them leaves.
- Organizational blogs: The considerations here are similar to what I described earlier for Twitter accounts.
- Personal blogs: The considerations here are similar to what I described earlier for Twitter accounts.
- Commenting: The considerations here are similar to what I described earlier for LinkedIn commenting.
The preceding recommendations reflect my personal experiences with social media, the extensive reading I’ve done on the subject, my interactions with and observations of both individuals and employers, and my general expertise in related areas (e.g., employment law, human capital management). That said, this is still uncharted territory, and there are few definitive answers. I encourage others to share their points of view, as well as other relevant resources and examples that illustrate what best (and worst) practices look like. I especially welcome contributions from people outside the US, since my knowledge is generally limited to this legal environment. Asking and answering questions is encouraged as well. Thanks!
- Courtney Hunt