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Sat, Mar 12, 2011

Talent Strategies

Employment Law: Who Owns My Social Media Contacts and Posts?

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Most employees think their social media is none of their employer’s business. So, who owns your social media contacts and posts?  While you may think you own your contacts and posts online, the answer may depend on what agreements you’ve signed with your employer.

When you leave, it is possible for your former employer to make a claim to some or all of your social media contacts or posts.  Here’s why:

That Stuff You Signed Without Reading Might Hurt You

Remember that pile of stuff your employer handed you when you first started? They said to sign it and you were anxious to start working and not make waves, so you signed without reading. They might not have even given you a copy. Or maybe they handed you an agreement after you were working for awhile and you went ahead and signed.

Well, you need to read that stuff and understand what you’re signing next time. If you think you might have signed any of these, you’d better ask for a copy and make sure you know your rights and responsibilities. If you’re being asked to sign any of these provisions as part of a severance package, get legal advice before you sign.

  • Non-Compete Agreements: Most states allow employers to say you can’t work for a competitor for a year or two after you leave, as long as they have a legitimate interest to protect, such as trade secrets, or confidential information. That means that if you leave and start friending all your former customers on Facebook, linking with competitors and posting that you’re looking for work in the same field, you’ll probably get a letter from the company lawyer asking you to stop.

  • Non-Solicitation Agreements: Even if you’re allowed to work for a competitor, you might have agreed not to solicit employees, customers and/or vendors of the former employer. Some employers are demanding that former employees unlink and de-friend their LinkedIn, Facebook, and other social network contacts connected with the company. And an employee who leaves and starts sending connection requests to their old client list, corporate buddies and vendors can be in a world of hurt if the company thinks they’re violating their nonsolicitation agreement. Many courts that won’t enforce non-competes will still enforce a non-solicitation provision, so be careful.

  • Intellectual Property Agreements: If you signed an agreement saying anything you create on company time belongs to the company, then your employer might own your blog, Twitter account, or other social media you do on work time, especially if you’re blogging or tweeting about the company. Some agreements have clauses saying if you thought about it or created it during the term of your employment, even on your own time, your employer owns it. If you think they don’t own your novel, toy designs, or video game programming, ask the guy who did some preliminary designs on the Bratz dolls while he still worked for Mattel. The litigation has been going on for years over who owns those dolls, and the former employer successfully shut down the new company’s sales for awhile.

  • Confidentiality agreements. Many companies have employees sign agreements saying they will keep confidential company information a secret. If you blog, write a novel or tweet about the inner workings of the company, you might be accused of violating your confidentiality agreement. Also, some employers have noncompete and nonsolicitation provisions in documents called “Confidentiality Agreement.” Most people don’t read what they sign. Failing to read is no excuse. You’re likely bound by what you sign.

If you have any of these provisions in any agreement you’ve signed, you may need to be very careful to avoid breaching your contract.

Employers Might Have Rights Regarding Some Social Networking Even Without An Agreement

  • Work for hire. If you were hired to be the company blogger, to create a Twitter account and tweet for the company, to develop the corporate media presence, the work you did while you were employed and those social media accounts you got for the company likely belong to the employer. An exception is probably LinkedIn. They don’t allow profiles for companies – only individuals. Your LinkedIn profile is probably yours, even if the company told you to create it while on the job. Just don’t run afoul of your nonsolicitation or noncompete agreement.

  • Trade secrets. If you are the safekeeper of the KFC secret recipe, know the formula for Coca Cola, or have access to anything that would be of value to a competitor and that the company keeps secret (could be client lists, manuals, pricing – anything kept from the public) you can’t blog or tweet about it without getting in trouble. Even if you didn’t sign an agreement, most trade secrets are protected by state and federal law. On the other hand, if it’s on the company website or available publicly, it won’t be considered a trade secret.

Who Owns My Social Media Contacts and Posts?  Few Case Law Precedents

There are very few cases on this developing area of law. Some cases to take a look at or to keep an eye on are:

Amway Global v. Woodward: A blog post was evidence of violation of a non-solicitation agreement.

Sasqua Group v. Courtney: The fact that the company’s customer info was available on LinkedIn and other public sources means it wasn’t a trade secret.

TEK Systems, Inc. v. Hammernick: Complaint in lawsuit alleges employee violated a non-solicitation agreement when the employee added contract employees to LinkedIn profile. There’s no decision yet in this case that bears watching.

When In Doubt, Ask!

People are sometimes surprised when I tell them to talk to their former employer about this stuff. The truth is that most businesses don’t want to be in litigation any more than you do. Most business people can work out reasonable restrictions and accommodations.  Don’t hide what you’re doing or sneak around. A judge or jury might see this as evidence of a guilty conscience.

If you aren’t sure whether the company will let you keep your blog, mind if you connect with customers after you leave, or care if you work for a competitor, ask them in writing by email, fax or something that provides proof they got it. Tell them what you’re doing and why you think it doesn’t violate your agreement.

Tell them you don’t think it’s a violation, but wanted to check. Give them a specific amount of time to object, such as 72 hours or   business days.  Say that, unless they object by that time, you’ll assume what you’re doing is okay. If they don’t respond, even if they claim later you breached your agreement, you then have proof that you asked. It may be evidence that they didn’t act in good faith or waived their right to complain.

Understand What You Sign

While most people will continue to “own” their social media after they leave their employment, be very careful what you sign while you’re employed. If you don’t understand what you’re signing, get an employment lawyer in your state to review it before you’ve signed.

If you’ve signed an agreement that looks like it might have any of the provisions I just discussed and you’re leaving the company, take what you’ve signed to an employment lawyer if you’re in any doubt as to your rights and responsibilities. If you’re being asked to sign a severance agreement, get advice before you sign. You might be agreeing to give up more than the severance is worth.

Finally, always, always think before you post.

About the Author

Donna Ballman has been practicing employment law in Florida since 1986. Her firm, Donna M. Ballman, P.A., focuses on representing employees and former employees. Her practice includes negotiating severance agreements, defending against non-compete and other restrictive covenants, discrimination, harassment, and wrongful termination. She has taught continuing legal education classes for lawyers and accountants through organizations such as the National Employment Lawyers Association, Sterling Education Services, Lorman Education Services, Alison Seminars, the Florida Association for Women Lawyers, and community organizations. Ms. Ballman has published articles on employment law topics such as severance, non-compete agreements, discrimination, sexual harassment, and avoiding litigation. She’s been interviewed by MSNBC, the Wall Street Journal, Lifetime Television Network, the Daily Business Review, and many other media outlets on employment law issues. She was featured on the Forbes Channel’s “America’s Most Influential Women” program on the topic of severance negotiations and non-compete agreements. Donna’s blog on employee-side employment law is called, Screw You Guys, I’m Going Home: What You Need To Know Before You Scream “I Quit,” Get Fired, Or Decide to Sue the Bastards. She tweets about the latest employment law headlines and issues as @EmployeeAtty. She authored The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, a book geared toward informing novelists, journalists, and screenwriters about the ins and outs of the civil justice system, part of Behler Publications’ award-winning “Get It Write” series. It was awarded First Prize in the 2010 Royal Palm Literary Awards and was an Award-Winning Finalist in USA Book News’ Best Books of 2010. She blogs about using the law in writing in The Write Report. An honors graduate of Wellesley College, Donna Ballman received her J.D. from the University of Miami, also with honors, in 1986.

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