The argument continues and still there is no clear cut answer. Just who has legal ownership over contacts built up in an employees LinkedIn or Facebook account? Is it their personal account or the employers entitlement?
We now see increasing litigation starting to occur between employees and employers over the use of social media in the context of damaging employer reputation and perceived employee misconduct when employees have posted disparaging, defaming or confidential content. Parties to disputes are turning up at mediation or court only to be experiencing varied outcomes, depending on how the employer has established Social Media policy within the organisation.
DLA Piper Study recently revealed (2010) that only 25% of USA Corporations have a published social media policy for employees and that of those that do have a published social media policy, 50% of employees who were aware of such internal policies, admit to ignoring or violating them.
The sticky point however is creating policy around ownership of accumulated contacts within an individuals social media accounts. Is it their personal and legal ownership and entitlement or does the employer have the right to ask for them to turn the contacts over to the employer? In a practical sense, how does one do this technically anyway?
LinkedIn has in recent years aided the process by getting increasingly specific around how a contact has become ‘linked’ to you. Either through your current employer or previous employers, however an employer has little or no access to this.
Recruitment Consultant employees (and other sales related positions) are currently enjoying the loophole and increased power as prospective employers are canvassing their LinkedIn status in terms of how many contacts they have accumulated. A large contact list of 5,000+ is of marketable value, on entry to a business. However, when that Consultant leaves with considerably more contacts on their employers dollar and time, it then raises the legitimate question – who owns the contact?
So how does an employer gain strength in the current situation?
- Create Social Media Policy & Guidelines
Don’t be caught out and have clear policy around issues such as:
- specific definition of what a social media ‘business contact’ is in the context of employment.
- specific uses of social media for work related purposes.
- specific roles in organisation that use social media for their roles.
- specific uses of social media that are NOT work related.
- specific types of use that infringe on legislation such as Privacy Act, Anti-Discrimination, Occupational Health & Safety (i.e, psychological welfare of all staff) and other related legislation.
- policy around confidential company information. What is considered confidential and what isn’t.
- specific definition of what social media is and the specific tools or mediums that are of importance to company. e.g,
- mandate that any contact that is added to their social media account during their employment and in the context of point #1, is recorded in an internal system.
2. Update Job Descriptions
3. Record LinkedIn or FaceBook Contact Count
For sensitive roles within the organisation that require using social media to obtain business contacts, in the line of their duties, register their social media account contact count upon employment. This could be a simple progressive count range, tick-the-box approach. e.g, <50, 50-100, 100, 200, 400, 5000+ for example, and is not divulging the exact count but allowing you to gauge the before they joined you figure.
4. Update Termination Policy
Many traditional termination clauses may stipulate that employees have a ‘no-compete’ requirement, or return all ‘property’ of employer. However whilst there is still no real clear legal precedent around ownership of ‘virtual’ contacts, include how social media contacts derived out of their employment are handled upon termination, and the process for determining them.
5. Count On Exit
As per point 3, upon exiting the company a similar tick the box range that indicates the number that has risen in the course of employment with you.
Not all of these approaches will be relevant or necessary for all roles in the organisation, however for roles that are sensitive to list and contact building such as sales and business development roles it is worth a closer look.
Whilst the jury is still out, at the end of the day, like in the ‘old days’ if you have gained that contact during and out of the course of your duties of employment then is probably the employers list property, regardless what vehicle it sits on – paper, internal database or your LinkedIn account.
Anne-Marie Orrock is Managing Director of Corporate Canary HR Consulting,
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