When Employees Leave: Who Owns Social Media Accounts?

 

Lisa Nagele-Piazza, J.D., SHRM-SCP By Lisa Nagele-Piazza, J.D., SHRM-SCP September 4, 2018
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This is the third in a three-part series of articles on what to do when employees leave the business. Today's article explores how businesses can safeguard their social media accounts when the employees who manage them depart. Read the first part on conducting exit interviews and the second part on protecting trade secrets.

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aintaining a strong social media presence is no longer optional for many employers. Regular updates to clients and other business partners on Twitter, Facebook and the like are now expected as part of daily work. So what happens when the employees who maintain social media accounts leave the business? Do they have to hand over the passwords, or can they take these accounts to a competitor? Here's what employment law attorneys said.

An employer's ability to successfully claim ownership of a social media account may depend on its policies and the agreements it made with employees during their tenure, said John Merrell, an attorney with Ogletree Deakins in Greenville, S.C.

"The best practice is to proactively set expectations from the start," said Anna Suh, an attorney with Fenwick & West in Mountain View, Calif. Employers should iron out what is confidential and proprietary business information, she said, noting that social media account use and online content creation can be rolled into that definition.

Workers are usually excited to be joining the company during the onboarding process, and therefore they may be more willing to review and accept policies, she added. "It becomes more of a challenge to manage the process at the back end."

Make Ownership Clear

Not every employee is going to have access to an employer's social media accounts, said Adam Kemper, an attorney with Greenspoon Marder in Boca Raton, Fla. Rather, access is usually granted to employees in marketing or public relations.

Employers should identify those employees and enter agreements at the outset, establishing that workers may use the accounts only for business purposes, he said.

Kemper noted that there should be an internal review process for social media posts so that messages are consistent with the employer's branding and other communications.

Employers may want to have a general policy that covers what employees can and can't do on social media and a separate policy for workers who are specifically responsible for managing the company's social media, Suh suggested.

In addition to protecting the employer's information, policies should prohibit workers from disclosing the confidential information of customers, suppliers or vendors on social media, said Robert Yonowitz, an attorney with Fisher Phillips in Irvine, Calif. Policies should also prohibit posts that are obscene or threatening or violate workplace policies against harassment.

Yonowitz cautioned, however, that policies shouldn't prevent employees from talking about wages and working conditions, because that could run afoul of workers' right to engage in concerted activity under the National Labor Relations Act. This right is protected in both union and nonunion settings.

[SHRM members-only HR Q&A: What is the function of the NLRA?]

There's no boilerplate policy that will work for each employer, Merrell said. Employers will want to customize their policy based on the applicable laws, the scope of social media activity that employees will engage in and the types of accounts employees are permitted to use for business purposes. At a minimum, Merrell recommends that employers have a policy or written agreement that establishes the following:

  • Who owns the account.
  • What rules apply to the employee's use of the account.
  • What happens to the account when the employee leaves the company.

Retrieve Information

Although expectations should be set from the start of employment, the exit interview is a good time to remind workers of their obligations.

Before a worker leaves, a company representative should collect all account information, including passwords, and make sure the departing employee is locked out of all company accounts, Suh said.

If an employee receives a severance package, the separation agreement should include—if appropriate and depending on the employee's job requirements—expectations regarding the return of social media accounts, in addition to a general release and other post-employment obligations, she added.

"Change the login and password on the day of separation," Kemper said. Employers should also consider sending a note to departing employees stating that they no longer have permission to use company social media accounts or post on behalf of the business.

Don't Mix

For a variety of reasons, attorneys recommend that accounts be used for business purposes only and should not mix personal and business activity. One reason is that it may be harder to retrieve passwords at termination if the account is personal. Some states have laws that prohibit employers from requesting usernames or passwords to employees' personal accounts. So there's a possibility that employees who use their personal account for business purposes could try to claim the protection of those statutes, which could obviously make it a lot harder for an employer to exercise control over accounts, Merrell said.

Furthermore, when employees are allowed to use personal social media for employment purposes, managers may unintentionally learn about sensitive information, such as an employee's medical issues, Yonowitz said. "Social media is an absolutely necessary business tool, but we don't want to know things about employees that aren't our business," he said.

Once a policy is in place, it is important for employers to enforce it fairly and consistently, Kemper said. "Take a side and stick with it. If you are treating everyone the same, then you are less likely to have claims of discrimination or favoritism." 

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