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Special Report on Social Media: You Can't Take Your Online Contacts With You ... or Can You?

June 6, 2011
Recruiter Jackie Juge wasn't about to surrender her LinkedIn network of contacts once her work for Microsoft Corp. ended.
In comments to a blog posting last year, Juge described a dispute she had with the software giant—a conflict that raises tricky questions about social media that more and more companies and workers will inevitably face.
"Microsoft tried to get me to turn over my LinkedIn contacts to them after my contract ended. Those contacts were developed over five years of work with Google and MS, and the email default was my private email not corporate," Juge wrote at recruiting blogs.com. "I refused."
Juge, who now is a senior recruiter at Mountain View, California-based Google Inc., added that Microsoft eventually dropped the matter. She declined to comment further about the conflict, and Microsoft also declined to comment.
As companies rush into the worlds of Facebook, LinkedIn and Twitter, some are discovering sticky issues when employees engaged in corporate social media activity depart. The issue of "social media portability" is rarely clear-cut. Intellectual property protection standards and traditional noncompete agreements do not fully address questions about ownership of social media content and contacts.
The social media portability issue is likely to become more pressing as job opportunities open up and the labor market becomes more fluid. Controversies over ownership of social media have centered largely on recruiters, who have been aggressive in tapping social networking tools as they troll for talent. But questions about social media content and relationships promise to touch a much wider range of workers as companies increasingly push their employees to become "brand ambassadors" online (See "Companies Look to Capitalize on Viral Voices," May 2011, p. 8).
The stakes are high. Companies stand to gain or lose valuable connections to potential customers, employees and business partners. Depending on how they handle the issue, corporate reputations could suffer. And firms could find themselves embroiled in litigation over LinkedIn and Twitter accounts.
Experts say companies ought to get out ahead of the portability problem by setting clear rules from the get-go about long-term ownership of social media material. Attention to the details of how social media accounts are set up also matters.
But companies generally are not focusing on potential legal issues raised by employees' use of social media for business purposes, says Mitch Danzig, a member at the law firm Mintz Levin Cohn Ferris Glovsky and Popeo in San Diego. "It's easier to deal with these questions on the front end than on the back end," Danzig says. "I don't think most companies are doing this."
New territory
Portability hadn't been an issue until now because many companies embraced social media only recently. Now, though, recruiters often rely on LinkedIn. Marketers maintain Facebook pages, upload videos to YouTube and try to accumulate Twitter followers. And other employees may be encouraged to tweet, post blog items or otherwise get involved in the cacophonous social media conversation to show their company is a great place to work or a trustworthy firm.
Research firm Gartner Inc. predicts that by 2014 social networking services will replace email as the primary vehicle for interpersonal communications for 20 percent of business users. "During the next several years, most companies will be building out internal social networks and/or allowing business use of personal social network accounts," Gartner said in a 2009 report.
Social media content is important to workers who increasingly are trying to build their own brand. Given today's tattered employment deal where job security and loyalty are rare, workers feel they need to protect their future career by retaining some degree of personal ownership of their work and professional networks.
For example, employees' blog postings could help establish them as industry thought leaders. LinkedIn contacts may prove crucial to a worker's success as a salesperson in a future job. And even though the brevity of tweets means their content may be of limited value to an employee later, the followers generated through the micro-blogging service can be important to business prospects in the future.
Traditionally, a variety of legal tools and principles have clarified the ownership of work created by employees and their ability to use their professional contacts once they leave a company. These include confidentiality pacts and nonsolicitation agreements, which might state that a departing worker can't seek to recruit former colleagues or conduct business with the company's customers for a set period of time.
But the social media world doesn't neatly fit into that framework. Social media content, such as videos posted online, blog entries or tweets generally are public rather than private. LinkedIn contacts are at least partially public—people directly connected with a user can see shared contacts—and some LinkedIn users expose all their connections to their network. In addition, it isn't clear whether simply connecting with someone on LinkedIn or "friending" a contact on Facebook constitutes a business solicitation.
Social media portability is a gray area lacking clear legal guidance, says Kathy O'Reilly, director of social media relations for employment services firm Monster Worldwide Inc. "There really aren't any precedent-setting cases."
Connecting the dots
Interesting issues were raised in a lawsuit filed last year by Hanover, Maryland-based technology staffing and services firm TEKsystems Inc. against three former employees and their new employer. Among other things, the lawsuit claimed one of the former employees, recruiter Brelyn Hammernick, violated an employment agreement by connecting with 16 TEKsystems employees on LinkedIn.
The case posed the novel legal question of whether simply "connecting" with professional contacts through networking sites violates an agreement barring solicitation, says Renee Jackson, an attorney with law firm Nixon Peabody in Boston.
"Does the mere existence of a network of professional contacts equal solicitation? Will compliance with a nonsolicitation restriction require individuals to 'disconnect' or 'de-friend' colleagues, customers or clients of former employers until the nonsolicitation period expires?" Jackson wrote in a report last year.
The parties to the case, though, reached a court-approved settlement last year. The lack of a decision by the court means "these questions remain unanswered," Jackson tells Workforce Management in an interview.
Hammernick declined to comment on the case. TEKsystems did not respond to a request for comment. Nor did Hammernick's current employer, technology services and staffing firm Horizontal Integration.
Another early portability court case was filed in the United Kingdom by recruitment firm Hays Specialist Recruitment against a former employee. In the 2008 case, England's High Court ordered the ex-employee to disclose information related to his LinkedIn account. The worker had to reveal communications with business contacts whose data he uploaded to LinkedIn while he was employed by Hays.
At the time, a Hays spokesman said: "Over the course of the past 24 months, Hays has brought a number of claims against former employees and competitor agencies to protect its business interests. As advances in social networking sites and technology generally become more and more sophisticated, so too are the legal strategies necessary to protect our data."
A Hays spokeswoman declined to comment on the case or on any legal actions Hays may have taken more recently involving social media contacts.
As the TEKsystems and Hays cases suggest, recruiters are at the cutting edge of social media portability conflicts. The profession has flocked en masse to LinkedIn, which now boasts more than 100 million members and a variety of tools for finding and evaluating job candidates. Recruiters are the "lab rats" in the business experiment with social network ownership, says Hung Lee, a recruitment consultant based in London.
As lab rats go, they could prove to be a feisty bunch, a survey by Lee suggests. In 2009, Lee polled 100 people in his network of contacts, many of whom are recruiters, on the question of who owns LinkedIn accounts. Three-quarters of respondents were certain that they owned their LinkedIn account rather than the company that employed them. To Lee, there's clearly a disconnect between his unscientific survey and the Hays case, which signals trouble ahead on the portability issue. "It's only going to be a matter of time," he says. "We're all sort of sleepwalking into it."
From the blogosphre
Lee helped awaken people to the topic of social media ownership with a blog posting last year. His essay at recruiting blogs.com titled "Who Owns Your LinkedIn Profile? What Everyone Needs To Know" triggered Juge's comments about clashing with Microsoft over LinkedIn contacts.
Her dispute highlights the importance of how social media accounts used for corporate purposes are set up. Among the organizations paying close attention to this issue is Union Bank & Trust Co., a Lincoln, Nebraska-based financial services firm with about 800 employees. One of those employees manages authorized Facebook page and Twitter accounts that have been established in the company's name, says Jason Lauritsen, Union Bank vice president of human resources. "He does it from behind the Union Bank corporate accounts," Lauritsen says. The employee doesn't give his name as he posts material or answers questions through Facebook and Twitter, Lauritsen says, nor is there a photo of him associated with those accounts.
Union Bank may be relatively safe in terms of avoiding conflicts later about social media ownership, but a faceless, "corporate" approach to Facebook and other social networks risks looking inauthentic—a danger given the public desire for communicating with real people and personalities in the Web 2.0 age.
Monster tries to compromise on the subject. O'Reilly says her three social media specialists communicate using accounts that are Monster corporate properties, but they use their real names in their postings. Monster also seeks to strike a balance when it comes to content ownership and use. Former employees who want to publish social media content made for Monster on their own sites can do so, but they must obtain permission from the company as well as cite Monster as the source. Those workers also are expected to note that the work was done for Monster and to put a link back to Monster's site. The company says it monitors these posts for compliance. "The biggest hurdle is really to define all of this upfront," O'Reilly says.
Danzig, the lawyer at Mintz Levin, suggests that companies borrow a page from email when they set up social media accounts. They can blend the employee's name with the company's name in setting up a Twitter handle—as in @JohnSmithABCco. "You're not communicating with ABC Co.," Danzig says. "You're communicating with a person at ABC Co." In this scenario, ABC would theoretically own the content, but it remains to be seen if the courts will agree.
Alienating employees and harming the employer brand are potential pitfalls related to portability. Experts note that draconian policies with respect to social media contacts and content can sour workers on a firm.
Lauritsen says top recruiters won't touch a company that seeks to snag their contacts. "They wouldn't even consider going to work for someplace that tells them their network doesn't belong to them," he says. If one of his own recruiters leaves, Lauritsen says he will not demand a copy of his or her contacts. To him, technologies like LinkedIn have merely made networks that workers have always had more visible. "Because we can see it, we've gotten a little bit greedy about it," he says.
But not everyone shares that view. Nixon Peabody's Jackson says it is reasonable for companies to ask departing employees for a list of contacts they made during their employment with the firm.
At Monster, for instance, employees working as social media mavens have to be prepared to give up flocks of followers. "If an employee leaves the company, any fans/followers they establish on behalf of their official social media role here [at] Monster stay with Monster," the company said in a statement. "The Monster-branded social media accounts remain in Monster's possession."
Monster, though, has a hands-off stance toward its recruiters. If recruiters leave the company, they do not have to disclose the LinkedIn contacts they made at Monster.
Mintz Levin's Danzig acknowledges LinkedIn accounts aren't much different from old-fashioned Rolodexes, which rarely, if ever, were confiscated by employers when workers left their jobs. Still, he says companies may have to start asking employees at the start of their employment to list existing business contacts, so that both parties are clear on which ones companies have a right to retain at the end of the person's job tenure. This might strike some as invasive, but, Danzig says, "It certainly could help prevent a lawsuit later on."
Lawyers also suggest that companies create clear guidelines related to social media portability, which could include updated employment agreements. Jackson, for example, suggests amending nonsolicitation pacts to explicitly ban soliciting former clients through social media.
Explicit policies and agreements may clarify the issues, but they may not head off controversy. Juge, for example, argues that recruiters should fight to protect their digital Rolodexes. "My advice to recruiters is not to back down," she wrote in her comments last year. "It is your profile, reputation and work history on the line."
Workforce Management, June 2011, pgs. 32-34, 36-37 -- Subscribe Now!