Can employers protect business contacts acquired by employees’ use of social media?

July 15, 2011 Christina Catenacci Employee Relations, Human Resources, Privacy and Security

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Consider this: you have encouraged your employee to use online social media during work time to build professional contacts to grow your business. The employee goes ahead and invests time during the workday visiting sites like Linkedin, Twitter and Facebook. This strategy proves to be positive; the contacts have been part of the business growth you have experienced. Then, your employee wants to leave the company and move on to another job. Can you, as the employer, ask for the contact information the employee accumulated during his or her employment?

This is a new and upcoming issue, especially for businesses where it is critical for employees to develop networking opportunities in order to succeed in generating new business for the employer.

The issue becomes especially complicated if the employee uses personal email addresses and contact information, and uses his or her personal time to nurture these contacts over the course of employment.

Many employment contracts, which are crucial for employers to use, do not specifically address this issue. Though a contract may include intellectual property, non-disclosure and even non-solicitation provisions, there are usually no firm claims to new business contacts introduced by an employee that are acquired through social media.

For that matter, who owns the content of the social media accessed during work hours? Should an employee simply hand over her or his entire account? Further, what if the employee wants to communicate with those contacts to generate business with his or her new employer, your competitor? Alternatively, what if the employee just wants to keep the contacts as general contacts he or she accumulated over his or her career?

As more companies promote the use of social media to increase networking and business opportunities, these issues involving their departing employees will increasingly arise.

What can employers do?

Employers have to revisit the provisions in their employment contracts. More specifically, it is recommended that employers:

Clearly state that business networking and use of social media for work should be conducted via work email addresses and during work time. In contrast, personal social media should be separate using personal email addresses and accounts, and on personal time. The employee should be clear when joining groups or making comments whether they are personal or work-related.
Clearly state that the employer owns the content and contact information of the business connections developed by the employee during work hours, and when the employee leaves the company, the employer reserves the right to take this information. On the other hand, contacts developed before the employment with the employer and contacts that are personal remain those of the departing employee.
Clearly state that the employee may not, on leaving the company, solicit former clients and members of the employer-related contact list developed via social networking in order to promote the business of a competitor.
It is important to be reasonable. Allow the employee to keep in touch with general contacts, as long as it is clear that these contacts are not to be used to solicit clients for a competitor.
Alternatively, the employer and employee may agree that they share ownership of the content and connections developed during the course of the employee’s employment. When striking this balance, just be sure to set out the playing rules.
At the beginning of the employment relationship, clearly allow the employee to choose whether he or she wishes to use social networking sites during work hours for work purposes, as some employee have serious privacy concerns and would rather use other means of business and career advancement (some may not even have personal accounts on these sites for this reason). In this case, the employer would acknowledge that it would not own content or contact information regarding the personal life of the employee.

Essentially, the goal for employers should be to find a way to clearly set out social media portability for departing employees in a reasonable and clear manner. Of course, this is a new frontier, and the law is somewhat unsettled; but employers can attempt to limit the problems by including clear and reasonable provisions in their employment agreements setting out the expectations of the parties. The fairer the provisions appear, the better the situation for all parties.

What do you think should happen when an employee leaves a company? Who do you think should have the contacts the employee accumulated? What if the employee spent extra time outside of work hours and made efforts to nurture the relationships to promote his or her own career?

Christina Catenacci
First Reference Human Resources and Compliance Editor

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more

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