You Don’t Own Me—Is it Employer or Employee Social Media Content?
Many employers have implemented employment contracts and policies that specifically provide that the employer owns all developments, technological or otherwise, by employees during their employment. But what happens when employees have pre-employment social media accounts that they use to develop business during their employment?
And what happens when an employee uses his or her pre-existing social media account to market, advertise, and/or develop business for his or her employer?
Cognizant of the innumerable benefits of social media as a business development and marketing tool, more and more companies are encouraging their employees to use social media to advertise their products and services and to develop business contacts for the company.
Some companies have gone a step farther, actually creating social media accounts for their employees and making marketing and business development via those social media accounts a part of the employees’ job duties.
But what happens when the employee leaves his or her employment with the company? Under what circumstances can the employer retain ownership of the contents of an employee-used social media account after the employee’s departure?
The best way for an employer to ensure that it maintains ownership over such information often is to successfully categorize the information as a “trade secret.”
Litigation and legislative history on the subject of social media content as trade secret is still fairly scant, and, unsurprisingly, employers have met with limited success when claiming that social media content, which is by its very nature and definition available to the general public, is a trade secret.
But the limited litigation and legislative history on the subject does suggest that a potential definition of “employer-owned social media” includes all of the following criteria:
- The employer created and maintains the account at its own expense;
- The employer created the account specifically for an employee’s use for work purposes;
- The employer regulates the contents of the account; and
- The employer has clear written policies—covering both permissible use and contents of the account—stating that the account is the employer’s property.
Pending additional clarification or binding authority on this subject, employers would be well advised to treat these factors as essential to maintaining ownership over the content of a social media account and the account itself.
Employers attempting to assert ownership over pre-existing social media accounts face an additional hurdle in the form of legislation prohibiting employers from requesting the user names and passwords to employees’ personal social media accounts.
After all, an employer can’t claim ownership of, much less use, an account when it doesn’t even have the right to discover the password to that account.
This article was written by Olga Savage and published on CEB Blog.
Olga Savage is with Hartnett, Smith & Paetkau in Redwood City and primarily represents employers in labor and employment law matters.
CEB – Continuing Education of the Bar ● California – provides practical legal resources to help lawyers achieve success.