We talked last time about the importance of having employee policies addressing ownership of social media content and connections. Another place where ownership of social media should be addressed is in confidentiality, non-disclosure, non-compete and other employment agreements. These agreements can help you set ground rules, shape expectations and put in place the protections your company needs.
In PennWell Publishing Limited v. Ornstein, a court in the United Kingdom addressed whether an employee’s contacts, created, maintained and backed up on his employer’s computer system, belonged to the employer. The employee’s employment contract did not address the issue. Further complicating matters was the fact that the contacts at issue included personal contacts and business contacts the employee had prior to joining the employer.
The Court ultimately concluded that the contact database belonged to the employer, and that the employee could not copy or remove the information in its entirety for use outside or after employment. However, the Court also found that if the employee had kept a separate list of contacts and selectively copied those which he regarded as long-term or journalistic contacts (as opposed to those which would also be useful to the competing business he was setting up) and maintained them on his own computer, he would have been able to use them.
Our takeaway from this case? If you don’t have an agreement in place that specifies what to do with contacts, or different contact databases (whether maintained on your internal system on or a social media site) when an employee leaves, you are asking for trouble.
But, you are asking, what are my options? If your company wants to “own” an employee’s contacts after the employee leaves employment, you should specify that in your agreements. You should also have a conversation with incoming employees so that everyone is on the same page. It may be that the potential employee – particularly one with a large database of existing contacts, like a recruiter – would not knowingly or willingly agree to give up their contacts and would rather find employment elsewhere. (You should have seen the faces of the attendees at the Minnesota Recruiters Conference #14 when Teresa said that an employer might require that they leave behind all contact databases…) As a result, it’s a good idea for the company to be open about its expectations right from the start.
In light of the fact that you may lose good talent if you require employees to leave behind social media connections upon separation, you need to think creatively. Perhaps a better solution would be to have your Agreements treat contacts, friends and connections an employee brings into a company differently from those connections that are developed during employment. But this is not a one-size-fits-all solution. It may not give your company adequate protection. Plus, when an employee leaves it can often be difficult to separate new relationships from old.
So, what’s another option? What about sharing ownership? That is, if an employee has, and further develops, a list of contacts, why not outline up front in your Agreements that if the employees leaves, they can keep their contacts, but they must leave you a copy too? This may work better for some businesses and less so for others, but the key is to think not only about what kinds of protections your company needs, but also about the practical reality of social media connections.
What do your Agreements say? Do they address social media? What are your employees’ expectations regarding their ownership of social media?