Who
owns your LinkedIn profile? (Hint: it
might not be you.)
That was the headline on a post on this blog
back in June, 2011 — and the answer that I arrived at with help from a number
of legal and compliance experts was, “It depends.”
That wasn’t a particularly satisfying answer
for me personally. I had one of the
original 5,000 LinkedIn accounts while it was still in beta, and I have only a
small number of contacts because I make it a point to limit my contacts to
people I know personally — people I’ve worked with (or for), people I know from
face-to-face interactions.
The idea that an employer might someday claim
that my contacts belonged to them was more than a little unsettling. Now, a
court in England has issued an order that requires an employee who resigned to
start his own consulting business to turn over all of his LinkedIn contacts to
his former employer – along with receipts and contracts proving that none of
them became clients of his new firm.
That clarifies one legal issue in the U.K. at
least: the contacts on your LinkedIn profile are more likely to belong to your
employer than they are to you if those contacts are customers, employees, or
vendors you did business with in your job.
According to press reports, this is the first
time a British court has ordered an employee to turn over all LinkedIn contacts
to an employer.
It “highlights the tension between businesses
encouraging employees to use social networking websites for work but then
claiming that the contacts remain confidential information at the end of their
employment,” according to the Telegraph newspaper.
While it’s unclear exactly what transpired
between an employer and employee based on press reports, one thing is
clear: both employers and employees need
to start considering ownership of social media contacts. Paying attention to
the documents you sign when you are hired – or reviewing them after the fact if
need be – is becoming more important for all employees.
Marketing employees who manage corporate
social media sites and accounts during their employment may find that their
social media accounts are especially vulnerable according to employment
attorney Donna Ballman. Ms. Ballman
wrote recently that employers may have a claim regardless of what documents you
signed.
“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 individual. 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,” she says.
Note that Ms. Ballman says that the profile is
probably yours — the question of who owns the contacts is being hotly discussed
(on LinkedIn, of course), and it’s unclear if U.S. courts will follow the
British courts on this issue. Just a year ago, in another case involving a head
hunter who went out on her own only to be sued by her former employer (who
happened to be her uncle) for approaching candidates and clients who were her
LinkedIn contacts — and also part of his database. The Eastern District Court of New York state
took the opposite stance from the UK court, ruling in Sasqua Group, Inc. v.
Courtney that the availability of information in social media invalidated the
company’s argument that the information was a trade secret. (It also proves that if you hire a relative,
make sure that you get them to sign the standard noncompete agreements.)
Meanwhile, more and more companies are issuing
policies, and asking employees to sign contracts and agreements, that spell out
who owns social media contacts. According to a recent study by DLA Piper, a
third of employers have disciplined employees for something posted on a social
media site. The research also found that 21% of employers had to give their
employees a warning for posting something derogatory about a colleague or about
the business itself.
The study is divided into employer and
employee segments. The employee report
says that:
- 14% have posted a status update or tweeted about work issues
- 22% posted a status update or tweeted about a colleague
- 28% have posted photos of colleagues or business activities
- 1% have posted confidential business information
- 39% have befriended a colleague or business contact in Facebook
- 39% have connected to a colleague or business contact on LinkedIn
The employer section of the study says:
- 21% of employers have taken disciplinary proceedings because of
information an employee has displayed on a social media site about another
employee
- 25% of employers have taken disciplinary proceedings because of
information an employee has displayed on a social media site about their
activities at work
- 31% of employers have taken disciplinary proceedings because of
information an employee has displayed on a social media site about the
organization
- 30% of employers have taken disciplinary proceedings because of the
level of usage of social media sites while at work
Perhaps most surprisingly of all, the DLA
Piper study says that only 25% of American corporations have a published social
media policy for employees. Of course another study earlier this year reported
that half of U.S. employees who are aware of their company’s social media
policies admit to ignoring or violating them.
Still, a social media policy that spells out
the rights and responsibilities of employer and employees may be the best
protection for both. (Tips for small
businesses writing their first social media policy can be found here. Large
organizations, especially those in regulated environments such as financial
services, health care, insurance, and education, should consult with compliance
and legal counsel before drafting a social media policy.)
The key to avoiding litigation after an
employee leaves a job, according to columnist, author and social media
marketing expert David Coursey, is training and communication while they’re on
the job. “Communication, and setting the
right expectations, is as critical in a working relationship as in a marriage,”
Coursey says. “Awhile back, someone asked me about this, and they were shocked
when I suggested they ask their employer.
But the company doesn’t really want to sue its former employees – it’s
costly, time-consuming, and makes the company look like the big bad wolf.
“If you think that you own your LinkedIn
contacts, and you can make a case that you do, talk to them before you give
notice. If you’ve already left, call the
HR department or your former boss, and discuss it. Take notes and document the conversation –
but don’t wait around,” Coursey says.
“This is a case where asking for forgiveness
may be a lot harder than asking for permission. I don’t know the details of the
case in the U.K., but the press reports make it look a lot like a case where an
employee acted in ways that were likely to cause problems – starting a
consulting business three weeks before giving notice, and contacting the firm’s
customers in the process isn’t ethical. And the company had sued other former
employees, so it wasn’t as if it was a secret that this behavior was frowned on.”
Stephen Selby, director of regulatory services
at LIMRA,sums up the issue simply, “Although the rules for social media are
still relatively unsettled, we do know that all the old rules still apply:
Don’t lie, don’t cheat, and don’t steal.”
I certainly hope that Stephen Selby is
right. (He usually is.) I’ll be just
fine if those are the guidelines. Bet you will be, too.
David Coursey
Forbes
Business & Investment Opportunities
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