HR Q&A

November 14, 2012

Social Media and the Employer

I recently was in a discussion with another employer who was trying to put together their Social Media Policy for their employees. As part of the discussion, the following question was asked:

Q. If I encourage my employees to either set up a social media account or actually have them set one up at the worksite for the express purpose of promoting the company, who actually owns the account?

A. At first blush it would appear that the answer would be the employer, but is it really? There have already been a number of lawsuits over what happens to a social media account once an employee terminates employment. For example, an employee sets up an account through LinkedIn and over time develops a number of contacts that not only benefit the employee professionally but also is beneficial to the employer. This employee is terminated during a layoff. The employer who has kept the user name and password information, simply goes in and either changes the username/password or terminates the account all together. The employee is angry because they planned to use the contacts they had generated to continue their professional career with another employer. Does the employee have grounds to sue to get access to this information?

Or worse yet, the employer terminated an employee and did not have the user name and/or password to the Twitter Account that was used by the employee to promote their business. The former employee has a large number of followers and not only uses the account to benefit a competitor but also uses it to disparage their previous employer. Can an employer demand that the account be closed or turned over to them?

The answer would seem to be unclear at this point. As this kind of case winds its way through the courts we may get an idea of where the legal system falls on the issue of who actually owns the account. Currently there are no state laws that we are aware of that cover this specific situation. However, the answer may actually reside in the Terms of Use Conditions for each social media outlet.

Most social media term of use contracts indicate that the account holder has the license to utilize their services and do not allow for the transfer or assignment of ownership from the individual who has set up the original account. So even if an employer has a SHOP type arrangement (where the employer contractually owns the invention or other ideas or work created by the employee while employed) for social media accounts created as part of the employees’ job, in the end it may come down to the Social Media Terms of Use Contract and not the Employment Contract.

It should be interesting to watch how this all works out, but until more clarity is provided an employer may want to consider setting up social media accounts that are clearly owned by the employer and simply allow employees access to post accepted materials on the company owned accounts.