November 29, 2012
When celebrated writer Ambrose Bierce said, ‘Death is not the end. There remains the litigation over the estate’; he did not envisage its extension to employment situations, where parting of ways could lead to a lot of heartburn over the employee’s LinkedIn contacts and Twitter followership – all amassed during the course of their employment. Many are inevitably leading to litigation too, especially when the employee leaves in hostility or because of an offer from a competitor – or an entrepreneurial venture in the same space!
When employers rely upon an employee’s Twitter feeds and LinkedIn contacts to build brand image and customer loyalty, what recourse will they have when that employee switches over to a rival, as with Phonedog’s Noah Kravitz who carried away 17000 Twitter followers when he left the company? Both are now embroiled in a bitter legal battle that is yet to declare either side as a winner. The questions raised covers the claim of a company to the followers, fans and brand awareness it has worked to build – and the intellectual property rights in which it has invested resources as well as money.
As an individual, the content created by you and posted to sites like Facebook, Twitter, LinkedIn, YouTube or others is still yours; as long as you are careful with setting your privacy rights and the rights over the work you post and may have to affirm that it is does not infringe upon someone else’s intellectual property. The rights in the material can even pass to your estate or legal heirs. However, in a corporate environment, the employment arrangement needs to include an agreement between the parties clarifying the ownership of followers, blog traffic, contacts and other content. This is especially important in where an employee’s social media presence is useful for both official and personal purposes – though a result of the employee’s personal attributes like creativity, writing skills, intelligence, wit and humour.
Employers may protect their interests:
- Recognize that employees have established personal social media accounts, and have established followers and contacts that are part of their professional network. These do not automatically become the assets of the employer upon start of employment.
- Differentiate between the personal accounts established by an employee and the “premium” accounts paid for by the employer.
- Create a social media policy that delineates how social media will be used as a business tool. Clearly state who is authorized to represent the views of the company, specify the conditions under which the employees can use the company name and logo, and establish oversight procedures to ensure compliance with the policy.
- Ensure that each employee understands the social media policy, including the consequences for non-compliance.
- Clearly delineate the type of content that is the property of the employer vs. the property of the employee.
- When establishing blogs, groups, corporate profiles and similar tools always ensure that more than one employee is serving as administrator, and that all passwords are known by at least two employees.
- Register proprietary information and intellectual property effectively.
- Specify what information needs to recovered from the employee, in case of termination.
- Contacts established in the course of sales or delivery efforts should be retained in a Corporate CRM system. Employment agreements should specify, through non-solicit and non-compete clauses, ‘ownership’ of these contacts.
It pays both employers and employees to avoid disputes and heartache, through adopting mutually accepted standards; instead of investing emotions and time while incurring huge amounts of money towards expensive lawsuits over a contacts/followers, of unspecified valuation.
The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.