Category Archives: Social Media Policies

Social Media Policy Update (JDSupra)

For those who don’t know, I am a big fan of JDSupra. The site offers thousands of articles on nearly every legal topic. Some articles are good, other articles are bad, and most are fairly short and straight to the point. Sifting the wheat from the chaff can be a little difficult but there are certainly nuggets of gold to be found within the constant stream of submissions.

One place to always keep your eye on is the Social Media Policy page. It is constantly updated with quality articles from quality writers who are well educated on the topic of social media and its application and effect in a variety of legal areas and scenarios. (And no, I am not one of the writers or featured authors.)

For example, this week you can learn about the NLRB’s determination that (yet another) social media policy violates the NLRA; how employers should address the increasing use of social media by employees; social media corporate policies; and plenty more.

Check the page out and consider subscribing to the news feed. The updates are generally quite germane to employers and the employment environment. The posts will definitely help you stay on top of the latest developments in social media law and best practices.

Time to Update Your Social Media Policies – New on Lawyernomics

As we enter Autumn, I suggest you take a look at my recent post on Avvo’s Lawyernomics blog. The title of the post is “NLRB: Time to Update Your Social Media Polices (Again?)” and it addresses new guidance from the National Labor Relations Board on social media policies. The field of social media policies is ever changing and employers need to stay abreast of these changes, particularly the issues identified by the NLRB.

Give the post a read and then go edit your social media policies (again)!

Social Media Policy for Employers – NLRB Says This One Works

You may have read that the NLRB recently released its third publication addressing social media policies and their “lawfulness” under the NLRA (specifically, whether the policy has a chilling effect on protected union activities such as concerted efforts related to complaining about work conditions, etc.). In what is styled as the: “Acting General Counsel releases report on employer social media policies,” the NLRB has taken yet another step to bring itself to the forefront of social media policy related issues.

You may also know that I am in the throws of a two-week jury trial and have not had much time to post recently. I have some fairly strong opinions about the NLRB’s latest publication. But that is for another post. I already link to several resources where you can find form or sample social media policies for employers. Well, now the NLRB has given its stamp of approval to one (shocking, I know). While I let my emotions subside over the NLRB’s stance on social media policies in general, consider the following, which the NLRB approved in its entirety (yes, I realize I am a little late to the game with this post):

***
Social Media Policy

Updated: May 4, 2012
At [Employer], we understand that social media can be a fun and rewarding way to share your life and opinions with family, friends and co-workers around the world. However, use of social media also presents certain risks and carries with it certain responsibilities. To assist you in making responsible decisions about your use of social media, we have established these guidelines for appropriate use of social media.

This policy applies to all associates who work for [Employer], or one of its subsidiary companies in the United States ([Employer]). Managers and supervisors should use the supplemental Social Media Management Guidelines for additional guidance in administering the policy.

GUIDELINES
In the rapidly expanding world of electronic communication, social media can mean many things. Social media includes all means of communicating or posting  information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, whether or not associated or affiliated with [Employer], as well as any other form of electronic communication.

The same principles and guidelines found in [Employer] policies and three basic beliefs apply to your activities online. Ultimately, you are solely responsible for what you post online. Before creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance, the performance of fellow associates or otherwise adversely affects members, customers, suppliers, people who work on behalf of [Employer] or [Employer’s] legitimate business interests may result in disciplinary action up to and including termination.

Know and follow the rules
Carefully read these guidelines, the [Employer] Statement of Ethics Policy, the [Employer] Information Policy and the Discrimination & Harassment Prevention Policy, and ensure your postings are consistent with these policies. Inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject you to disciplinary action up to and including termination.

Be respectful
Always be fair and courteous to fellow associates, customers, members, suppliers or people who work on behalf of [Employer]. Also, keep in mind that you are more likely to resolved work-related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying.

Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.

Be honest and accurate
Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly. Be open about any previous posts you have altered. Remember that the Internet archives almost everything; therefore, even deleted postings can be searched. Never post any information or rumors that you know to be false about [Employer], fellow associates, members, customers, suppliers, people working on behalf of [Employer] or competitors.

Post only appropriate and respectful content

  • Maintain the confidentiality of [Employer] trade secrets and private or confidential information. Trades secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.
  • Respect financial disclosure laws. It is illegal to communicate or give a “tip” on inside information to others so that they may buy or sell stocks or securities. Such online conduct may also violate the Insider Trading Policy.
  • Do not create a link from your blog, website or other social networking site to a [Employer] website without identifying yourself as a [Employer] associate.
  • Express only your personal opinions. Never represent yourself as a spokesperson for [Employer]. If [Employer] is a subject of the content you are creating, be clear and open about the fact that you are an associate and make it clear that your views do not represent those of [Employer], fellow associates, members, customers, suppliers or people working on behalf of [Employer]. If you do publish a blog or post online related to the work you do or subjects associated with [Employer], make it clear that you are not speaking on behalf of [Employer]. It is best to include a disclaimer such as “The postings on this site are my own and do not necessarily reflect the views of [Employer].”

Using social media at work
Refrain from using social media while on work time or on equipment we provide, unless it is work-related as authorized by your manager or consistent with the Company Equipment Policy. Do not use [Employer] email addresses to register on social networks, blogs or other online tools utilized for personal use.
Retaliation is prohibited [Employer] prohibits taking negative action against any associate for reporting a possible deviation from this policy or for cooperating in an investigation. Any associate who retaliates against another associate for reporting a possible deviation from this policy or for cooperating in an investigation will be subject to disciplinary action, up to and including termination.

Media contacts
Associates should not speak to the media on [Employer’s] behalf without contacting the Corporate Affairs Department. All media inquiries should be directed to them.
For more information If you have questions or need further guidance, please contact your HR representative.

***

And there you have it. A valid, enforceable social media policy from the NLRB. Stay tuned for my scathing remarks on the remainder of MEMORANDUM OM 12-59 and its criticism of basically every social media policy currently in existence. Once trial is over, I will let you know how I really feel about the NLRB’s position on social media governance and employer rights.

But, until then, hopefully this post will help raise some compliance issues that you can address and implement.

JDSupra’s “Social Media in the Workplace: Lawyers Weigh In…”

I tweeted about this fantastic resource earlier but I think it warrants its own blog entry. Many of you may not be familiar with JDSupra:

  • For Business Professionals: A free, daily source of news, business insights, and legal analysis from lawyers and law firms.
  • For Law Firms: The leading platform to increase visibility by distributing your legal content online.

I am a big fan of the site and try to contribute frequently. (You can see my profile at: http://www.jdsupra.com/profile/tysonsnow/.) For those who are unfamiliar with this legal-specific social media / sharing site, you should definitely check it out. Among the numerous features available, the site will incorporate directly with LinkedIn so you can share your documents and newsletters across both platforms with nothing more than a click.

Even more valuable are the numerous RSS feeds, specifically tailored to practice areas. If nothing else, you need to check out the RSS feeds / Twitter lists that are available. The immense amount of legal information (from some of the biggest, most respected law firms in the world, as well as solo practitioners who are consistently proving the effectiveness of their tactics). Fire up Google Reader or your favorite RSS Aggregator and start getting timely, frequent updates and basically any practice area you can imagine.

Ultimately, however, this post focuses on a resource I stumbled across as a result of Adrian Lurssen, a JDSupra co-founder, and a friend of mine since JDSupra launched. (You should definitely follow him at @AdrianLurssen.) 

But here is what you really need to be aware of:

JDSupra’s Small Business Report, published on April 10/11, 2012. The focus of this issue is: “Social Media in the Workplace: Lawyers Weigh In…” Go ahead and bookmark this now. Seriously. It is one of the best resources regarding the intersection of social media and employment law. This Report includes cites to numerous publications, all of which contain great information. A sampling:

eWorkplace Policies – Social-Media, Privacy & Internet-Security (Fenwick & West): Impressive, 129-page publication covering workplace technology issues of the day: “Given the mobility of electronic information, the stakes keep getting higher. Employees have access to, and are the gatekeepers of, trade secrets and other sensitive and confidential information. There are now many more ways that key information can be compromised, lost or stolen…” Read on>>

Federal Courts Determine That Social Networking Accounts Can Contain Trade Secrets (Wilson Sonsini): “As more businesses take advantage of social networking sites to build their brands and expand their marketing efforts, the question arises: can such promotional tools include protectable trade secrets? In at least some circumstances they can, according to two federal courts considering misappropriation cases involving MySpace and Twitter accounts…” Read on>>

Socially Aware: The Social Media Law Update — Vol. 3, Issue 2 April 2012 (Morrison & Foerster): “The FTC has not yet publicly addressed this issue, but we think that it could challenge an advertiser’s failure to disclose the consideration received in exchange for an endorsement conveyed by a ‘like.’ Any disclosure that the FTC would seek to prescribe in connection with “likes” displayed within the Facebook platform would most likely have to be built into Facebook’s “like” feature itself – something that is not within advertisers’ direct control…” Read on>>

Employers Must Update Their Social Media Policies (White & Case): “One of the main points underscored by the second [NLRB] report is that ‘[e]mployer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.’ The NLRA permits union and non-union employees who are not “supervisors” to engage in concerted action for their mutual aid and protection, including discussing their terms and conditions of employment. Such discussions are increasingly taking place on social media such as Facebook, Twitter and the like…” Read on>>

Second Verse: Worse Than the First! (McNees Wallace & Nurick): “We have discussed this many times before in the last year, but it is worth repeating: now is the time to review and narrowly tailor your policies to ensure compliance with rapidly-developing [NLRB] case law. With carefully crafted policies, you can still protect the your organization’s reputation and intellectual property; enforce attendance and harassment policies; and do so, without infringing on employees’ right to engage in protected concerted activity…” Read on>>

Regulate Employee Technology Use Without Becoming a Target (Lane Powell): “Contrary to popular belief, private sector employees do not have a constitutional right to ‘free speech’ in the workplace. Many employees do, however, have the right under Section 7 of the National Labor Relations Act (NLRA) to engage in ‘concerted activities for the purpose of … mutual aid or protection.’ While the NLRA does not protect actions taken solely on an employee’s own behalf, it does protect actions taken with or on behalf of at least one other employee, or on the authority of other employees, when those activities relate to the terms and conditions of their employment…” Read on>>

Password Protected – Proposed Social Media Privacy Legislation (Sheppard Mullin): “…a handful of states have drafted legislation seeking to outlaw what some consider to be an invasion of privacy. Lawmakers in Illinois, Maryland, and California have proposed legislation that would prohibit employers from requiring that current or prospective employees provide or disclose any user names, passwords, or other ways of accessing a personal online account. State lawmakers from Connecticut and New Jersey are considering drafting similar legislation, as is the United States Senate…” Read on>>

If you are an employment lawyer, general counsel, an employer, or just someone who is interested in the impact that social media is having on the workplace, you need to check out this compendium. In a relatively short period of time, you will be well versed in nearly all significant social media issues as they relate to employment law and employees.

The only negative about the Report is that there is nothing from me included in it (haha). I’ll forgive Adrian for that. But seriously, check this out. It is well worth your time. Feel free to browse my profile and the articles / posts I have uploaded in order to familiarize yourself with the site; big firms are using it, small firms and solos are using it, and you should be too. This Social Media in the Workplace Report is a perfect example of why:

View Tyson B. SnowOf the “social” resources available to lawyers, this is one of the best. I’ve been using it since it launched and will continue to do so in the future. And I would love to hear your thoughts and experiences with the site and how it has helped your practice, your marketing, and your overall success. It can be a little overwhelming at first but check out the Report (for social media issues) and check out the site for whatever needs you may have.

(For what it is worth, I do not receive any special benefits or perks from JDSupra; my opinions are based on the fact that this site rocks.)

Who Owns Your LinkedIn Account? Before PhoneDog, there was Eagle v. Edcomm.

I recently wrote about Who Owns Your Twitter Account (based on the now infamous PhoneDog case). But there is another case out there to consider when evaluating ownership of social media accounts:  Eagle v. Morgan, et al., Civil Action No. 11-4303 (E.D.Pa. December 22, 2011) (“Edcomm“). The facts, for purposes of this post, are fairly straightforward.

Plaintiff, Linda Eagle, founded Edcomm, Inc., in 1987 to provide financial services and training. “In 2008, Dr. Eagle established an account on LinkedIn, which is a professional network on the Internet.” Eagle subsequently sold Edcomm and was involuntarily terminated. The new owners of Edcomm, knowing the password to Eagle’s LinkedIn account, logged in and changed the password (so Eagle could not access it). The new Edcomm owners altered Eagle’s LinkedIn account so that:

individuals searching for Dr. Eagle were routed to a LinkedIn page featuring Ms. Morgan’s [Interim CEO] name and photograph, but Dr. Eagle’s honors and awards, recommendations, and connections.

Of course, within three weeks, Eagle was able to regain control of her LinkedIn account, which creates the controversy we are interested in discussing: does Eagle or Edcomm own the account?

A little more procedural history: Edcomm, apparently unhappy with the deal, subsequently brought suit claiming securities fraud, fraudulent inducement, common law fraud, breach of contract, breach of the covenant of good faith and fair dealing, and other common law claims and demands for injunctions, declaratory relief, and indemnification. Eagle fired back with her own suit alleging 11 different causes of action:

(1) violation of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030(a)(2)(C); (2) violation of the CFAA, 18 U.S.C. § 1030(a)(5)(C); (3) violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A); (4) unauthorized use of name in violation of 42 Pa.C.S. § 8316; (5) invasion of privacy by misappropriation of identity; (6) misappropriation of publicity; (7) identity theft under 42 Pa.C.S. § 8315; (8) conversion; (9) tortious interference with contract; (10) civil conspiracy; and (11) civil aiding and abetting.

As expected, Edcomm counterclaimed. Significantly, the counterclaim alleged that while under Eagle’s management, Edcomm implemented a policy requiring Edcomm’s employees to create and maintain LinkedIn accounts. These employees were required to: (a) utilize their Edcomm email address for LinkedIn accounts; (b) utilize a specific form template, created and approved by Edcomm, for their description of Edcomm, work history, and professional activities, as well as photographs taken by a professional photographer hired by Edcomm; (c) contain links to Edcomm’s website on LinkedIn accounts and the Banker’s Academy webpage, as well as Edcomm’s telephone number; and (d) utilize Edcomm’s template for replying to individuals through LinkedIn.

More significantly:

According to the Counterclaim, for all departing employees, Edcomm, at the direction of management, requested and retrieved Edcomm-related LinkedIn connections and content from the departing employees’ accounts.

Edcomm alleged Eagle misappropriated the LinkedIn account when she regained access and control and refused to return it to Edcomm. Eagle moved to dismiss  but the trial court refused to dismiss Edcomm’s claim that Eagle had misappropriated the LinkedIn account by re-taking possession of it. Bound by the allegations of the counterclaim, the court recognized:

Edcomm argues that it was the rightful owner of Edcomm’s number and the LinkedIn account connections. Edcomm prepared and distribution marketing materials containing its number, and Edcomm’s personnel developed, maintained, and furthered the LinkedIn Account for Edcomm’s sole benefit and use. Although Dr. Eagle knew of Edcomm’s proprietary interest in these items, she nonetheless misappropriated both Edcomm’s telephone number and her LinkedIn account connections for her own use.

The court concluded that, under Pennsylvania common law, Edcomm had, at a minimum, stated a claim for misappropriation of an idea:

The Counterclaim Complaint expressly alleges that, with respect to the LinkedIn account connections and content, “Edcomm personnel, not Dr. Eagle, developed and maintained all connections and much of the content on the LinkedIn Account, actions that were taken solely at Edcomm’s expense and exclusively for its own benefit.” While Plaintiff argues that Edcomm fails to allege facts that would show that it made a substantial investment of time, effort, and money into creating the cell phone number or LinkedIn account, Edcomm counters that its employees developed the accounts and maintained the connections, which are the route through which Edcomm contacts instructors and specific personnel within its clients. As these conflicting allegations create an issue of fact requiring further discovery, the Court must deny the Motion for Judgment on the Pleadings as to the misappropriation counterclaim.

(Emphasis added). Note that this was a ruling on a motion to dismiss and not a ruling on the merits. In allowing Edcomm’s “misappropriation of ideas” claim to proceed, the trial court acknowledged that Edcomm sufficiently alleged it had made a substantial investment of time, effort and money into developing Eagle’s LinkedIn account and thus that it was wrong for Eagle to then access and take the account away from the company after her termination.

Why you care: Ultimately, the court held that Eagle’s LinkedIn account may not belong to her even though it is her name that appears on the account. This is an interesting development, particularly given the difference between “individual” and “business / entity” accounts on LinkedIn. Can a company legally claim an individual’s LinkedIn account if that account was created solely for transacting and developing company business? This case may be the first in deciding that issue (although, as stated above, at this stage, no decisions on the merits have been made.

Disclaimer: As recognized by other commentators, this decision may raise more questions than it actually answers:

Thus, it seems that under the right circumstances, a LinkedIn account may not actually belong to the individual whose name appears on the account’s home page, and whose professional history and accomplishments are detailed in the account’s profile. This is an interesting development, but one that may not withstand further scrutiny, given the Court’s acceptance, without much discussion, of the notion that a LinkedIn account is a “novel” idea worthy of protection. The viability of this decision may also be impacted by the LinkedIn user agreement, which states that the “user” is the owner of the account. The Court did not address this fact in its decision, and in this case, if the company’s allegations prove to be true, the company may well be deemed to be the account “user.”

http://nysbar.com/blogs/LENY/2012/01/so_you_think_you_own_your_link.html

The facts of the case are interesting and quite specific. If this sounds like an issue that interests you, I definitely recommend you read the entire opinion. I have provided a courtesy copy [here].

I will use this as an opportunity to again point out the importance of social media policies. My guess is that, in determining that the account may belong to Edcomm, the court gave strong consideration to the fact that Edcomm had a policy of requiring employees to: (a) utilize their Edcomm email address for LinkedIn accounts; (b) utilize a specific form template, created and approved by Edcomm, for their description of Edcomm, work history, and professional activities, as well as photographs taken by a professional photographer hired by Edcomm; (c) contain links to Edcomm’s website on LinkedIn accounts and the Banker’s Academy webpage, as well as Edcomm’s telephone number; and (d) utilize Edcomm’s template for replying to individuals through LinkedIn. Add the fact that Edcomm required departing employees to “return” Edcomm-related “LinkedIn connections and content from the departing employees’ accounts,” and you start to see why a court might see the account as a company asset as opposed to an individual asset.

As I have advised in previous posts, social media policies need to be well thought out and clear. With Edcomm and PhoneDog behind us, my advice remains the same. Employers concerned about maintaining ownership of social media accounts should establish policies stating:

  • that the business owns the account;
  • that the employee has no right to use the account after termination of employment;
  • that the employee must turn over the account upon termination of employment; and
  • that only the employer is allowed to change account names and settings.

It will be interesting to follow these cases as they progress through the courts.