Today is the fifth installment in our series on actions that employers can take to prevent employee theft of trade secrets, and this installment focuses on employee social media use.
Social media presents unique challenges related to the protection of confidential and trade secret information. For one, it’s still a relatively new concept – at least as far as the courts are concerned – and the law is still trying to catch up. If you recall, we wrote previously about a case where a corporation claimed a former employee’s LinkedIn contacts constituted trade secrets and should be protected as such. (See Trial Court to Decide Whether LinkedIn Contacts Are a Trade Secret.) In that case, however, neither the plaintiff nor the defendant offered any evidence to indicate whether the employee’s privacy settings were set to keep his contacts secret or not – so we don’t yet know where that case will end up. This demonstrates the need to be thoughtful about addressing how your company and your employees are using social media. For example, in this instance, had the corporation prohibited an employee’s ability to upload company contacts to LinkedIn via a policy or an agreement with the employee, it would have a better opportunity to prove that it took steps to keep those contacts confidential.
In addition to contacts being disclosed on LinkedIn, employees may either intentionally or inadvertently disclose confidential information on other forms of social media, such as Facebook. For example, employees venting about work could disclose confidential product information, protected health information, strategic marketing information, or sensitive/non-public financial information. Under most circumstances, we would not hesitate to advise an employer to terminate an employee who intentionally discloses confidential information on social media. However, some employers feel wary of terminating employees for leaking trade secrets or confidential information on social media because of the concern that the employee could somehow claim the termination violated the National Labor Relations Act. (We’ve written countless posts on netWORKed about so-called “Facebook firing” cases and how certain employee social media activity is considered “protected concerted activity” under the NLRA.) What would happen, for example, if an employee leaked trade secrets on his or her Facebook page but did so in the context of a group discussion about working conditions? Better to think about this up front and provide some training to employees about why disclosure of confidential information on social media could result in termination and harm the company.
Lastly, when investigating a leak of trade secrets via social media, employers should also be conscious of the requirements of various states’ social media password legislation. Those laws typically prohibit employers from asking employees for their login and password information, but sometimes there are exceptions for workplace investigations. Best to consult legal counsel when there is any question about your right to access an otherwise private social media site.
How does your company balance the benefits of employees using social media to tout your company’s products and brand with the risk that employees may provide too much information – including confidential trade secret information – in their posts?