That was the headline on a post on this blog back in June, 2011 — and the answer we arrived at with help from a number of legal and compliance experts was, “It depends.”
That leads us to a related question: who owns LinkedIn contacts — an employer or the employee?
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 headhunter 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 U.K. 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.
“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.”
(If you work in a regulated industry like insurance, financial services, banking, healthcare, or education, you can get more tips on complying with guidelines and regulations relating to social media from two webinars — recordings and downloadable presentations are available at these links: Drawing the Line Online: Personal vs. Professional – Rules of the Road: Basic Marketing & Compliance in a Regulated Environment.)