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

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?

It’s estimated that by the end of 2015, 60% of companies will be looking into, or spying, on your personal social media activity.

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?

Top three differences between old professional behavior and new professional behavior

Social media blogger and author Allison Fine recently wrote an article in the Havard Business Review discussing the difference between an old professional and a new professional.

Are you an old professional or new professional?

Through a series of examples she conveys the point that old professionals are those who operate by ‘corporate’ rules of conduct. New professionals, or those engaged in the social media world, are connected; literally. They more openly wear their professional hearts on their sleeves and feel connected on a more personal level. They share hobbies and interests with others in the course of their work.  Fine asserts that corporations need to be like new professionals to succeed; shedding the corporate veil and opening up to the world.

While I agree with some points, I tend to believe that a proper mixture of old professionalism and new professionalism is needed to succeed. I also believe businesses do need to embrace social media but, not without some level of planning and oversight. 

I present to you the top three differences between old professional and new professional behavior and some thoughts as to why I feel a mixture of behaviors is the way to go:

1. Guarded and closed off versus open and emotional
   Old professionals operate by a different set of standards when it comes to the public release of company information. They tend to close the blinds and curtains until a carefully formulated message is ready for public release, if at all.  New professionals want to get information out in real time. Yes, the opportunity to make public mistakes increases but it makes your company more ‘human’ and easier to engage with.
   

   
   The new approach is risky because it only takes one mistake to relegate you to the front pages of the social media realm for all the wrong reasons. I am one of the thought that designated, trusted individuals should be responsible for speaking on the company’s behalf in social media and that executive oversight is a good idea.


2. Public mistakes aren’t acceptable versus being free to make mistakes and apologizing
   
   Public mistakes are the enemy of the old professional and are a direct result of that guarded, closed off persona. Time and time again we’ve heard reports of companies and celebrities putting out sensitive information or doing something outside the realm of reason. Oddly enough, many of these mishaps occur in the social media world.
   
   

   Everyone, old and new professionals alike, make mistakes. What’s really important that you don’t make too many of the same mistakes and view them as an opportunity to learn.

   
   
3. I have to have all the answers versus I’ll get back to you
   In the old professional world, when a question is asked you are expected to have an answer and to be on top of all goings on.
   
   
   I am more new professional when it comes to this attribute. I tell my teams and colleagues it is acceptable to say, ‘I don’t know but I will find out and get back to you’ and that one cannot possibly succeed by holing up and working without communicating with the team.

In a sense, I am agreeing that we do need to be more transparent and accessible to the world outside of ourselves, however, one need be careful about the way they present themselves publicly.

There is indeed a divide as to what makes a person or company professional, what is considered acceptable and that it is likely somewhat generational. Fine argues that social media makes professionals and companies more human, in that they are more ‘honest, open, fallible, funny, and connected.’ Ultimately she says companies need to embrace the new professional approach to be effective.

I tend to assert the point that many pros, old and new, who are firmly entrenched in social media and use it for work and play, have a diminished ability to separate their front-stage persona from their backstage-selves.

All-too-often, the exact characteristics that are positives for the new professional are joined together with a feeling that it’s ok to be the ‘real you’ in all environments. Spouting off opinions without thinking (ala personal social media) could possibly alienate you, your company and those who support it by being too ‘real.’

The old professional is likely the real face you should have on in most instances because it is important to show respect, restraint, and patience. That’s not to say that being completely old school is the right way to go either. I suggest that companies need to find the right balance between openness and planning to be truly effective.