May 24, 2010

Social Media Best Practices

Posted in Best practices, Facebook, LinkedIn, Productivity, Social Media Tools, Social networking policy, Twitter tagged , , , , , at 11:30 pm by bizlawblog

I seem to be getting more and more organizations asking me to talk on the issue of using social media for business. As a result, I have been collecting articles, so I can try to impart the wisdom of others upon the neophytes. In many ways, as the social media ecosystem continues to grow and mature, we are all neophytes. I have tried to learn from what others have said. I have occasionally found their wisdom too obscure or irrelevant for my purposes, but have also found some gems along the way.

This page is devoted to starting a formal catalogue of the articles I have found to be most useful or insightful, in hopes of helping others find their way.

There is so much “wisdom” and so little time, as they say, that I’d like some help building this list. If you have a favorite piece you would like to recommend for others to read, in order to find their way down the path to more a useful social media experience, please add your comments. I will add the best to this list and keep this going as long as I can.

Social Media Practices, in General

Social Media for Business

Blogging

Facebook

LinkedIn

Twitter

Filtering and Accelerating Social Media Monitoring

*For an updated and extended version of this post, click here or on the link under “Pages” in the upper right hand margin of this blog: Best Practices – Tips on Social Networking

Please take the survey on best social media “best practices” article you have read.

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December 17, 2009

Employer Ownership of Employee Social Media Accounts

Posted in Best practices, Courts and social media, Employee issues, Facebook, LinkedIn, Productivity, Social networking policy, Twitter, Uncategorized, Web 2.0 tagged , , , , , , , , , , at 1:13 pm by bizlawblog

Over the last 35 years, I’ve spent a lot of time dealing with disputes between employees and their employers. I’ve been on both sides of the table, drafting and enforcing non-compete agreements, and helping employees break those, which did not adhere to legal or moral principles.

In “the old days,” some of the primary issues related to whether the employer could keep an employee, or former employee, from using information the employer said was “proprietary” and, in many cases, whether the now departed employee had been using that information, while still employed, to set up or assist a competitor. With the onset of social media, many “prospectors” are now using social media to find business prospects and to maintain a relationship with them.

In some cases, the employer will mandate that employee are to engage in using social media channels, such as LinkedIn and Facebook to hunt for prospects or deal with customer service issues. In some cases, it is the employee who suggests this tactic or uses it, often outside of the office environment, to do the prospecting. As is the case with the enforceability of non-compete agreements, there is a great deal of misinformation and confusion about what the law says about all this. As is also the case with non-compete agreements, what the law says may be different in different jurisdictions. In Kentucky, for instance, the case law has matured in different directions on some non-compete issues, between the state court system and the federal courts in Kentucky. This is great for lawyers, but not necessarily so for those trying to find their way.

The relatively new world of social media adds a new layer of complexity to this, and the ownership of social media accounts, as well as ownership of the contacts and other data contained therein, has become an increasing source of questions for employers and their lawyers. Many employers ban the use of social media, on site or off, and particularly prohibit unauthorized references to the employer, brands, other employees, “the boss,” etc. Some of these fears, as described in David Kelleher’s article, 5 Problems with Social Networking in the Workplace, are well deserved, and some are not. Fortunately for employers, most, if not all of this is easily clarified with some basic but well drafted documents.

Long before the advent of the social media age, employers routinely required employees to sign non-compete and non-disclosure agreements. If properly drawn, these agreements defined what intellectual property, including clients, prospects, and other proprietary or “sensitive” information belonged to the employer and was prohibited for post employment or other unauthorized use. Likewise, courts have dealt for many years with the issue of the employer’s right to monitor and screen employee communications, including e-mail.

What is relatively new these days is the ownership of social media accounts and content. I have represented many client groups, such as those in the insurance business, where it is relatively common for agents to take their “book of business” or client accounts with them from agency to agency. In many cases there are non-compete agreements binding the parties. Since moving around is so common, however, many agencies will agree to allow a well-networked agent to come in, with the option to take their “book of business” with them upon departure. Only new clients generated at the new agency, or other particular “house accounts” might be protected, in order to induce a successful agent to come on board. This too can be easily defined, and I’ve drawn up hundreds of these agreements over the years.

The ownership of an employee’s “personal” LinkedIn accounts and contacts, however, has not been well defined by the courts, at least on a specific basis. Likewise, Facebook and Twitter accounts are becoming some of the most valuable tools in the hunt for prospects and retention efforts to maintain current business. In many cases, these accounts have been created by an individual prior to the employment situation in which they are used. In some cases, it is the employer which provides the basics, and may even be setting up the account used by the employee. Witness the note from Tony Hsieh, CEO of Zappos.com, providing employees with a Beginner’s Quick Start Guide and Tutorial to Using Twitter. Once again, a clear employee use policy and non-compete agreement and NDA can resolve the issues to avoid most disputes and win the rest. Having a well thought out damage control procedure is also helpful.

For those not endowed with good legal and HR backup in these areas, social media sources can provide the answer to the many of the problems involved in their use. Typically, the cases involving confidentiality revolve around the expectation of privacy. A subset of this issue relates to whether a policy is in place, existence of password use, and other indications the social media content would normally and reasonably be anticipated to be private or something in which the employer had an interest. This has been the primary rule on e-mail accounts and content for many years and has been often litigated, even prior to the relatively new federal rules on e-discovery. This is not much different from court decisions indicating an employer can secretly videotape an employee on the job.

Beth Harte’s nice article on this, Who owns your Twitter or Facebook Connections?, is a good start. As she points out:

You might not like what I am about to say here, but I believe that if a company is paying you to connect with people online on their behalf…they own those connections…

Take my Twitter/Facebook accounts, I am Beth Harte on both. If I were to join a company in marketing capacity and continue to increase my connections while they are paying me, I believe those connections are the property of my employer. Or are they?

How do we address this potential issue? Here’s one thought…

Prior to accepting a job, negotiate that all followers/friends (existing or new) will remain your property and that the company has the right to “borrow” your accounts and connections for the period of your employment.

Using the example of my insurance agency clients, Harte’s suggestion would probably be:

Prior to accepting a job, negotiate that all followers/friends (existing or new) will remain your property and that the company has the right to “borrow” your accounts and connections for the period of your employment.

Does that work? Would employers buy into that? Would we need to prove the value of our accounts before they would accept those negotiating terms?

Blogging provides an even more interesting set of problems. Some, such as Chris Gatewood, feel “Employers cannot control their employees’ online conduct away from the office, and for the most part, they should not try.” In many cases, employee blogs are primarily personal, but may contain statements about their employer, the employer’s products or services, and sometimes about policies, other employees, etc. Likewise, it is easy for a current or former employee to “slip” and post something about a new technology the person has worked on, or other information the employer would consider proprietary. Once again, a good non-disclosure agreement can deal with these issues in advance.

Joshua-Michele Ross points out in his article, A Corporate Guide For Social Media:

Big corporations are scratching their heads trying to figure out how to harness the benefits of increased employee participation while mitigating the risks. Clearly there is no one-size-fits-all: If you are in financial services you have unique concerns for privacy, if you are part of the YMCA, you must be aware that having counselors “friend” teenagers is not appropriate, etc.

While there are possible negatives involved in having employees on the social Web, most employees have common sense. Begin with a set of possibilities first (increasing awareness, improving customer service, gaining customer insight and so on) then draw up a list of worst-case scenarios (bad mouthing the company, inappropriate language, leaking IP, to name a few). Modify the guiding principles for your employees below to help mitigate the risks you’ve identified.

Once you embrace having your employees participate in the social Web, give them a few basic guiding principles in how they conduct themselves.

While issues related to ownership of social media accounts and content are relatively well defined, in those cases where there are clear policies and agreements in place, as well as where the activity is clearly sponsored or encouraged by the employer, and the employee is using the employer’s resources to engage in such activities, the law is less settled in the case of pre-existing “personal” accounts used with a new employer, or used without the employer’s knowledge or resources. These can likewise be resolved easily with a good agreement, but we lawyers are waiting to pay our kids’ college tuition, dealing with those cases where the employer or employee has not been perceptive enough to resolve this in advance with a basic set of written agreements and policies.

This area of the law is rapidly changing and newer technologies, such as Twitter, and concepts such as “followers,” will provide the need for professional assistance to help manage these issues, and the risks they entail, for many years to come. Yesterday’s non-compete and non-disclosure agreement, as John Jantsch points out in his article, Do You Have a Social Media Non-Compete?, may not work tomorrow, unless it is particularly well drawn to provide for such new technologies and concepts.

I try hard to be proactive with my clients, but I “love” clients who get their legal advice, and forms, online and then have to make “The Call” to the lawyer to seek help. I believe it may have been GM’s Mr. Goodwrench commercials, which proclaimed, “pay me now or pay me later.” In these cases, the pay is much better for the lawyers “later” and for the parties, earlier.

That’s what I think. Please leave a comment and let us know what you think.

If you are really interested, I just started yet another free group on LinkedIn, Social Media Search and Forensics. Many of these articles and discussion about them are posted there. Please join us.