Let's imagine you're in marketing and you've built up your presence on Twitter as part of your job. Or maybe you're a recruiter and you've invested time developing your LinkedIn contacts.
You change jobs. Can you take your Twitter, LinkedIn and Facebook accounts — and all your followers and contacts — with you? And presumably use them for the competitors?
In a word — yes, as long as you haven't signed a contract to the contrary.
But it's a thorny and evolving legal issue, said Kevin Kelly, an employment lawyer who represents management at Locke Lord in Chicago. He began studying the employment issues surrounding social media when one of his clients asked for advice.
Many companies encourage their employees to set up social media accounts and include personal details to draw followers. The sites can be worth a lot of money when they're loaded with customers and potential customers.
But the disputes arise when a company tries to assert ownership rights — when employers figure, “We paid the employee to get the site up and running” — said Kelly, who has written an eye-opening bulletin to his clients about the lawsuits that have sprung from questions of who owns the accounts.
In one such case, an interior designer had a large following on Twitter and Facebook and used the accounts to promote her design work. After she had an accident, company officials obtained access and continued to post as if the employee was at the other end of the keyboard.
The employee sued, arguing that she never gave permission. The design firm contended it acted properly because the accounts were used for business-related purposes.
The court weighed in on the side of the employee, saying she had created her own personal following and could use the social media sites for her own economic benefit wherever she works.
“It's kind of like a Wild West out there,” said Scott McLaughlin, an employment lawyer with Jackson Walker, who represents management clients in Houston.
McLaughlin, who designs noncompete agreements for his clients, makes a distinction between corporate social media accounts — like a company's Facebook page or Twitter account — and individual accounts.
It's pretty clear companies own their own social media sites emblazoned with the corporate name, he said, but that is not the case with those individual accounts that many employers encourage for marketing, brand promoting and relationship building.
The biggest tussles will likely be in sales, where the stakes are high, McLaughlin said.
Companies could quickly find arguments about ownership counterproductive.
For example, an employee might be tweeting outside the regular workday. If the employee is an hourly wage worker and subject to the overtime laws, does the employer really want to argue that the work was done at its behest? And that it owns the site?
The company could end up with a big overtime bill when the employee asks: “If it's your account, where is my overtime?”
So what can employers do?
Kelly recommends designing an agreement that clearly asserts ownership rights of the accounts that are developed with company time and resources. And do it before the account gets 15,000 to 20,000 followers, he said.
One tactic is for the employer to register the blog or Twitter account in the company's name, he said.
What happens if your top producer doesn't want to use corporate LinkedIn and Twitter accounts?
“You are held hostage by their success,” McLaughlin said, making it even more important to make sure employees are well-compensated and happy so they don't look for other jobs.
As interesting as it is, the Twitter conundrum doesn't affect a lot of rank-and-file employees.
“It's a limited universe,” Houston employment lawyer Joe Ahmad said. “It's celebrities in the broadest sense.”
When a television anchor, for example, changes stations, people will follow the anchor to the new station, said Ahmad. They're following the anchor, not the station.
But how many Twitter followers do rank-and-file energy company employees have? Probably not many, Ahmad said.
LinkedIn, however, is a different story, as the online networking tool has become de rigueur in business circles.
Employees used to have Rolodexes, Ahmad said, and it would be common for companies to ask departing employees to give them up. Now when you change jobs, LinkedIn sends out a blast to all your contacts.
“You don't even have to send out a letter that I've changed jobs and I'd love your business. LinkedIn does it for you,” he said.
Instead of clamping down on social media on the front end — and quashing creativity and enthusiasm along the way — McLaughlin recommends to his clients that they protect themselves on the back end through noncompete agreements.
For example, he said, the employee can't do business with the same customers for six months or 12 months. But they can still stay in touch via Twitter, LinkedIn or Facebook.