Illustration: Ashley Siebels
In our attention economy, likes, connections and followers have monetary value for both you and your employer.
But when you and your company break up, who gets to keep the connections you made while you were collecting a paycheck from that company?
Ashleigh Peterson became a case study on this dilemma last week after she took to LinkedIn to air her grievances about her previous employer Hays, a global recruiting and staffing company.
Losing thousands of work contacts in an instant
Peterson, a recruiter, was forced to remove thousands of her LinkedIn contacts because Hays claimed the relationships belonged to the company, not to her — even though it was nearly impossible to tell which had been hers before she joined the company.
“Delighted to be back up to 4,000 connections,” Peterson wrote. “It was very frustrating when leaving Hays that the legal department wrote to me threatening legal action if I didn’t remove any connections that they did business with—especially when they were already connections of mine before joining.”
Peterson’s post gathered over 100,000 views, she says, and it caused discussions in the comments that are still ongoing. Peterson’s question is something many of us want to know: to what extent does your employer own your social media?
In the U.K., it’s a little clearer: there’s precedent with courts siding with the employer. Hays even won a case against an ex-employee in 2008. The U.K. court ordered Mark Ions, an ex-Hays consultant, to hand over his LinkedIn contacts after he allegedly used his LinkedIn connections to get clients for his rival agency.
But after reading many sympathetic readers calling on her to “ask them to prove each and every” connection, Peterson now believes she “should have challenged it.”
Without knowing the details of Peterson’s employment contract, we can only speculate about who’s in the right about this. What we can do is offer advice so you can avoid these situations. Ladders talked to two legal experts on how employees and employers can clarify social media ownership and avoid legal action.
Ask questions about who owns what
With the question of ownership, University of Florida professor Jasmine McNealy notes that “in the United States, it’s a really unsettled area of law about who owns social media property as it relates to an individual and an employee. Unless you’re running the social media account for McDonald’s— then it’s obvious you don’t own that social media account.”
But for the rest of us who are building professional connections through our personal brand, the “number one thing [ownership] depends on,” McNealy said, “is whether or not, they expressed ownership of your social media in your employment contract.”
Here are questions employees can answers to decide whether or not your boss owns your social media:
- Who set up your Facebook, LinkedIn, or Instagram account?
- Does your employer know your password?
- Is your employer’s name in your Twitter handle?
- Who else is allowed to post on your social media site?
- Who ultimately makes editorial decisions? If your employer is part of your answers, then your employer can assert that they own it because one of the factors around ownership is “whether or not you had control and access,” McNealy said. Other factors can include “the jurisdiction you’re living in and where you take the case to court.”
A “yes” to any of these questions can swing the influence over your account to your employer, rather than you — a dangerous factor for people in recruiting, sales, or other professions where LinkedIn is a crucial tool for work.
For Peterson’s situation, McNealy sees both sides. “How can any company really claim that they own these connections that their employee cultivated? People’s reactions are valid because the individual, for the most part I would say, puts forth the labor to make those connections, even if the labor is just posting on Twitter. It’s still labor.”
On the other hand, she sees the other side if an ex-employee decides to take relevant company contacts and “use them for this rival business, then you can see okay, they have some underhanded mission going on here.”
Get clarity upfront before you start your job
It’s always better to raise questions around social media ownership before you sign an employment contract, David Harmon, an employment attorney and partner at Norris, McLaughlin & Marcus, tells Ladders.
“If there’s one message to give to people, it’s really a matter of going in with your eyes and ears open, knowing what the policies and procedures are, asking what they are, so there’s clarification at the outset and really understanding what the agreement says within the restrictions.”
Getting this clarification benefits the employer as well as the employee: “You don’t want your employee to be making posts that don’t represent your values,” McNealy said.
Harmon compares obtaining these social media rules to being a safe driver: “Know the rules of the road before you get on the highway.”
Create separate accounts
McNealy suggests employees can create separate social media accounts for personal and professional use.
“It is perfectly okay to have two separate accounts,” McNealy said. “Now this doesn’t automatically mean that if you’re using your professional account to promote your employment stuff that your company is going to own it at all. What it does do is separate your individual connections from your connections that you’re cultivating for the professional side.”
Put policies down in writing
These are not questions to bring up just in conversation. You want employer’s answers written down, especially if you face legal action later on. “Ultimately this is going to come down to what you know from your contract and what you’ve been told. Getting things expressly stated is always the best thing,” McNealy said.
And if all else fails and you find yourself facing legal action, take a deep breath. “Don’t panic. Contact a legal professional,” McNealy advises. It may cost money, but you do have a chance of prevailing.