Several months ago (see post here), I discussed two cases involving disputes between employers and employees over ownership of social media accounts—a Twitter case and a LinkedIn case.
The moral of both stories appeared to be that employers and employees both benefit from having a strong social media policy that clearly indicates who owns what. On the one hand, an employee who builds a large following on her own, over years, should be able to control the Twitter or Linkedin account that she built. On the other, a sales company that requires its employees to have a Linkedin account which adheres to a company-required format, and is maintained by company staff, may have a legitimate claim to that account.
Since my last post, the fight between Noah and his former employer Phone Dog over his Twitter account has settled, allowing Noah to keep his Twitter account and its many followers (after he had changed his handle from one that included “Phone Dog’s” name, to a handle solely in his name). And, a post-settlement quote by Noah himself suggests that both sides in that dispute wish they had clearly explained their expectations regarding ownership of social media accounts at the outset of their relationship.
Since that last post, another court ruling has come down in the LinkedIn case (Eagle v. Morgan) that further demonstrates the need for employers who want to control social media to have strong, clear social media policies so that employer and employee alike know what they’re getting into. (Order linked here for those interested.) As discussed in detail in my last post, although the former employer in the Eagle case did hijack its former president’s LinkedIn account, the court ultimately yearned for a clear company policy that indicated who owned what.
For instance, while the employer had invested substantial time in having company staff maintain current LinkedIn pages for employees according to a consistent company format, there was no company policy expressly informing employees that it owned their LinkedIn accounts. While the court sympathized with the employer’s clear investment of time in maintaining employees’ LinkedIn accounts, the court also seemed to expect a company policy making clear who owned what. Although the court didn’t rule on whether such a policy could have given the employer ownership of the employee’s LinkedIn account, it did note that the LinkedIn “user agreement” would have of course factored into that analysis.
So what happened? The employee in the LinkedIn case ultimately “won” and received a whopping award of $0.00—a fitting tribute to the mess created by a lack of any clear social media policy. (As a fellow attorney, I hope that one wasn’t taken on contingency.)
- Before you rely upon employee social media accounts or spend a lot of time maintaining accounts for your business, consider your objectives and create a social media policy to accomplish them.
- Specifically address ownership and control of accounts.
- Consider how each social media provider’s applicable user agreements and terms of service will affect ownership rights, and consider creating a new “company” account for each employee at the inception of his or her employment to start fresh, without any baggage.
- Although it is a broad subject for another day and post, employers must be careful regarding social media policies to respect employee rights to discuss and even complain about their work. The National Labor Relations Board (NLRB) has very specific ideas of employee rights in this regard and is coming after employers both for policies that interfere with employee rights of dissent on social media, and for employment decisions that arise from social media use. While you may think that the NLRB only handles labor union issues and will never affect your business, think again. It has the authority to police employer social media practices and is using it.
- To protect your rights to social media accounts that you may have created through your own effort, be sure to inquire early on about an employer’s expectations concerning your accounts.
- In the absence of any clear agreement, be wary of how using an account for both personal and company purposes could open you up to a claim that the company has some rights in the account.