Social media is quickly becoming both a gold mine -- and a land mine -- for employers. As social media begins to figure more prominently in the workplace, employers and employees alike are struggling with the issue of who “owns” a social media account used by an employee that is either created for and/or used for the benefit of the employer.
Typically, the more clearly a social media account is personal to the employee, the more likely the employee owns the account. On the other hand, where social media accounts are maintained by an employee primarily for the benefit of (and sometimes relying on the resources and good will of) their employer, courts are beginning to recognize employers’ interests in and rights to these accounts. This exact issue is currently pending in Federal Court in Pennsylvania, in the case of Eagle v. Morgan.
Some background on Eagle v. Morgan
Dr. Linda Eagle co-founded EdComm, Inc. in 1987. The company was sold in 2010. The new owners of EdComm allegedly encouraged employees to create LinkedIn profiles. Employees who did so were required to use specific company templates, EdComm email addresses, and were encouraged to list EdComm as their employer. Dr. Eagle, who created a LinkedIn profile in 2008, used LinkedIn largely to promote her business interest in EdComm. She relied on significant assistance from an EdComm employee who remained with the company after Dr. Eagle’s employment was terminated in 2011. After her termination, Dr. Eagle learned that EdComm had accessed her LinkedIn account, changed her password, and assigned the account to Dr. Eagle’s replacement, Sandy Morgan. Dr. Eagle sued.
What employers can do to protect themselves
While the Eagle court dismissed most of the Federal claims, multiple state law claims remain. These claims are similar to the kinds of claims that would likely be made under Illinois law. As these are argued and decided, what can an employer do to protect the company from claims and at the same time protect its own good will and interests in the social media account(s)? The answer is rather straightforward: Be transparent about expectations. Put them in writing and obtain employees' agreement in writing.
Employers should periodically re-visit and revise their social media and technology policies to reflect the advances being made in this area of the law. Today policies should include at least the following:
- A clear statement that all company-related social media accounts, particularly those accounts associated with an employee who acts as a “virtual face” of the company in social media, are the property of the company, not the employee. Include in your written and distributed policies that the company will own and control all accounts, passwords, data posted and obtained, and the goodwill associated with the accounts. Make an agreement with your employees that if they leave the company for whatever reason, the employee has no rights to use or access the accounts and will upon request surrender any and all information necessary to maintain the accounts and cease accessing them.
A provision in your confidentiality agreements and policies that specifically addresses employees' social media use. Provide your employees with clear guidelines as to what:
- Information is confidential to the company and should never be shared,
- Information is proprietary to the company and may only be shared with company approval, and
- Personal information employees can or cannot share on company-owned social media pages. Note: We recommend that personal information on a company page be very limited.
When an employee leaves the company for any reason, take prompt action to terminate their access to any company-related social media accounts and remove from the accounts any personal information about the employee.
Keep this in mind…
Your policies should educate and inform your employees and set reasonable expectations as to their rights in company-related social media accounts. By clearly setting and uniformly enforcing your policies and obtaining employees' consent to them, you can minimize your risks and liabilities with respect to employee-operated social media accounts, even as the legal landscape in this area continues to evolve.© 2013 Much Shelist, P.C.