The intersection of social media and the workplace has been all the rage at HR and employment law conferences this past year. A lot of attention has been given to the Phonedog v. Kravitz case and more recently to Eagle v. Moran. In these cases companies have tried to lay claim to employees’ personal social media accounts because the employees also used them to benefit their work activities.
The Phonedog case recently settled. And while the terms of the settlement were confidential, it appears that the former employee is keeping the Twitter account as a part of the settlement. This didn't, unfortunately, prevent the employee involved from having to waste an untold amount of time and money fighting off a frivolous claim from a former employer. The Eagle case is not yet resolved.
So, moving forward what is an employee to do. First, if you use Twitter or other social media to discuss topics relating to what you do at work or use it in support of your employer, watch out. Your employer may try to come take it from you when you leave the company. Management-side employment lawyers are advising employers to draft HR policies requiring employees who use social media as part of their job to agree that the company owns the account. (Why stop there, why not try to force employees to agree that the company owns a trademark on the employee’s name).
In any event, if you are an employee who uses social media beware. If your employer wants you to use your accounts to support the aims of the business, you need to respectfully refuse and suggest that the company create its own social media accounts and then give you access to those accounts it wants you to use. If you use your private accounts to discuss work or work-related subjects, keep in mind that your employer may be following your messages and may try to muscle your account away from you if you are successful and have a good number of followers.
Remember that the only thing that companies like better than bullying current employees is bullying former employees. And when it comes to post-employment litigation, the employer generally has the big advantage of having lots of money to waste on management-side lawyers willing to do their bidding.
This area of the law is evolving quickly and there is only so much you can do to protect yourself as an employee. Here is one idea: consider placing a message on your account bio or other prominent place making it clear that your social media messages are your own and should not be considered to come from your employer. This may make it a little more difficult for the company to argue to a court that it thought your account was for work and that it should therefore be able to lawfully take it from you.