Monday, June 18, 2012

What’s Mine is Yours: When does employer social media policy cross the line on privacy and property concerns?

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Do employers have rights to employee social media info?
In the technical resources business, we have to be concerned about several aspects of E/O/E laws and regulations. Yet, in today’s world, it’s becoming more commonplace for an employer to ask for social media user names and passwords from candidates, employees and current staff.

Laws and guidance are changing every day and cases being heard on the gray area over social media monitoring by employers. The trouble with the law is that it is black and white; all or nothing.

The problem with intellectual property of social media is that no one knows which side of the spectrum is which. Where do we draw the line between privacy and intellectual property rights of employers and employees?

Here are three scenarios to ponder:

1. What’s mine is mine…right?
Say a new employee has a following of over 35,000 Twitter followers and can attract 7,000 new visits per month to your corporate website. It’s all based on their ingenuity in building such a following before they were your hire. You hired them because of the very influence they garner in the social media realm.

After you hire them, who owns the rights to those followers and visits?

The employee did all the work before you hired them, which made them more attractive. Where is the line drawn? I can understand company ownership if the employee built the following based on their employer’s network, leads and audience they already had. When they bring it to the game, unless you’ve specified otherwise in a contract, you could lose the following you so desired at the time of hire.

2. Personal business on company time vs. company business on personal time
Often personal and professional social media cross paths in a professional setting. An employee promoting the company wants to gain as much publicity for the company as possible while under your employ. Do employers have the right to monitor everything you do during working and non-working hours?

There are stories of off time surveillance of personal accounts being conducted by employers to mitigate risk. Where does this leave social savvy employees? Must they worry about every word they share with friends and family. The information contained in your Facebook account could directly conflict with the best interest of the company and its initiatives. Does this type of social media surveillance cross the line?

What could an employee do in their personal sphere that could hurt the company?  Does that potential damage exist with enough probability that it warrants an invasion of privacy? Is it even an invasion of privacy if the employee chooses to mix their work and personal lives together? Is it even possible to separate the two these days, and is there too much gray area? The more I think about this the fewer answers I have and the more questions I have.

The surveillance is happening, more frequently than you’d expect; whether you know it or not.

3. What was yours and what was mine again?
So you’re ready to leave your current employer. Similar to the PhoneDog case we discussed in January, while with the company, say you created a large social media following. You used it for the good of the company, both in your time on the clock and off. 

Does that time off the clock give you any rights to part of that audience? Conventional wisdom regarding other forms of intellectual property would say ‘no.’ The tricky part about social media is that, many times personal networks and promotion come into the mix. Who’s to say employees have no rights to personal followers, on their own accounts, gained through this activity: The courts; a panel of experts; their network?

The problem with all of these scenarios is that there is a fine line between personal and professional clout when it comes to social media. And with the increasing use of social media as a promotional and marketing tool, the lines get grayed in a hurry in legal dealings. A case could go either way depending on the jury and the ‘experts’ called to testify.

If you’re an employer I ask, ‘Do you have a social media policy in place to cover such matters?’ If so, is it legal? If you’re the social media guru, have you protected the rights of your personal intellectual property?

Look for more legislation in the future surrounding these issues and look for and ever changing landscape of precedents to follow.

Where do you think the line should be drawn?