Thursday, February 17, 2011

Overlawyering and Social Media

I hate social media.

Coming from a blogger, I know this sounds like sacrilege. I have a LinkedIn account that I hardly use. I wouldn't be caught dead on Facebook, and I don't even understand Twitter, except for the fact that it apparently is a huge deal in the NFL. I am not even a texting guy.

But I realize social media is part and parcel of the workplace now, particularly for people in sales - which is where most of the non-compete action is at. I also know that some industries, like recruiting and professional staffing, rely on social media as a key networking strategy.

The social media explosion raises numerous issues, of course, and those have been discussed at length on various of my colleagues blogs. Jay Shepherd, who may be the legal world's most rational commentator, has a great article on an issue that has been gnawing at me for some time.
His article, "Who owns an employee's LinkedIn contacts?", addresses the question of confidentiality and restrictions over social media contacts and embedded contact information like e-mail addresses. His conclusion, effectively, is that employers cannot expect their workers to build networks and business goodwill through social media and then attempt to claim "ownership" over those contacts upon departure.

I am in 100 percent agreement with Jay on this. I represent a lot of employers and draft policies and contracts all the time. Increasingly, we are dealing with social media and trying to figure out exactly what the best balance is between protecting legitimate business assets (emphasis on the word "legitimate") and the evolving world of personal or social networking. Commandeering actual contacts information developed on social networking? Not something I suggest to my clients...

There are a number of things I am suggesting with regard to social media, none of which (I don't think) really hit back at an employee all that hard. What are common steps employers can take to deal with social media concerns? They include: (a) restricting disclosure of company non-public information through social media sites; (b) ensuring that blog articles and posts express only the author's view and not that of the company, its clients or business partners; (c) requiring that upon termination of employment, the employee change her status to reflect that she is no longer employed by or affiliated with the company; and (d) preventing an employee from making disparaging or misleading remarks about a competitor or any third-party through Twitter, Facebook and the like.

But ownership of contact information? Requiring an employee to delete a contact from her LinkedIn account and to transfer "ownership" of that contact's e-mail or cell phone information? Seriously?

There are some who advocate this. The contrary point of view to Jay Shepherd's article is expressed in an post by the firm Danna McKitrick, titled "Who Owns the Salesperson's LinkedIn Account?" There's not much I agree with in this article. The point seems to be that an employer should make sure that agreements require the employee to return all embedded LinkedIn contact information to the employer.

So I don't get this at all because all the employee has to do is find that same contact immediately after departure. How hard can this be? From what little I know about how contacts are made on LinkedIn and Facebook, it seems like those sites are constantly suggesting potential contacts. In fact, they seem to be specifically set up or designed to allow contacts to be made quite easily.

Under the Danna McKitrick approach, does this mean the ex-employee forever relinquishes ownership to such contact information, even if independently acquired? How could that possibly be carried out in practice? I don't really know how you adopt this, and I wouldn't ever recommend to an employer client that they draft agreements in this fashion. For starters, the employer is going to look ridiculous and its employees may wonder just what in the heck they've gotten themselves into.

To be blunt, attorneys who recommend a heavy-handed approach to monitoring social networking are engaging in blatant overlawyering. There is no other way to say this. Not every contract needs to be 15 pages long, and you don't need a policy on every single issue that could arise in the workplace. Pick your battles and be smart about it. If there ever was a dispute about ownership of LinkedIn or other social media contact information, no court is going to understand why an employee cannot keep basic data like cell phone numbers and e-mail addresses, particularly if that information is developed by the employee and freely available through social networking sites.

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