Who are your brand’s best advocates? The ones who really believe in your company’s mission and goals. Some point to those fans that you have turned from detractors to cheerleaders. They are great, and yes, they are hugely influential. What about those folks within your walls? The ones that really believe in the company’s goals and mission, because they live it everyday: your employees. If your employees are motivated to your mission and engaged, they can spread your word with little effort by the brand.
So let’s start talking about the two issues around activating your employees. The first, related to the title is ownership of social media accounts. This can be easy in my mind, but there has been much hand wringing about this, anyway. Bottom Line — put agreements in place, exert control where needed, and accept lack of control where not needed.
The second are the very real legal risks that pop up when you start to use your employees to spread your message. The compensable time risk is a very interesting one that many have used as a deterrent at larger companies. The other risk is not so much a legal one as just a business risk: the lack of control. These two things create a very interesting interplay. Let’s spend some time on this Friday talking about the first, and next week we can talk about the second.
I have longed talked about a line between employee speech which is “for the brand” from speech that is “about the brand.” Speech “for the brand” is on behalf of the company. You may not control directly the speech before it is posted, but there is some control of this speech, after the fact if not before.
Should the brand own all those accounts? I think so, but take a practical approach to this. If the employee doesn’t have an account before doing this, then their account is being set up at the request of the employer, and the employer should own it and everything that goes with it. What about accounts that already exist? I don’t think an employer can make a good claim to the account, but what they can make a good claim to are the contacts that were made while that employee was an employee. In Eagle v. Morgan (Trial Order) the court stated that Edcomm didn’t prove that the contacts were “developed and built through the investment of Edcomm” resources. Prove that the employee did it with your network, your systems and your time and I think you may be protected. That being said, I think we should look forward to more cases like this.
What can make this easier for both the company and the employee, though? Well crafted agreements that explain in sufficient detail the duties and responsibilities of each party when an employee speaks on behalf of the employer. This doesn’t have to be a meeting where the employer lays down the law but one where a good dialogue goes on. The employer needs to be realistic about their goals.
Do you care about the ownership of “Advice4Life,” or do you care about the fans that this person generates while at your company? If “Advice4Life” was created because the employer asked for it, then yes, you do care about the account. If the employee had “Advice4Life” from before they started and you want to start leveraging it, you may have some issues to deal with as an employer, unless you have an agreement in place. Think about this as you are bringing employees on that have accounts that you might want to use for the brand. This is easy when the employee’s position is very clearly one that requires them to speak for the brand in some capacity. For those employees, perhaps an inventory of their social media handles is in order. Delicate conversation, but if you are reasoned in why you want it, most people in that space will understand. However, what about the employee who during the employment becomes someone whose social presence you want to use? I have two words for you if you want to exert ownership over that account and the contacts generated: agreement and compensation (or in legal words – consideration). Continued employment cannot be used in most states, so reasonably compensate the employee for the account if you want it. If you only want the contacts generated going forward, an agreement will work great.
How many employers have agreements in place for the people that speak on behalf of the company, where the employer controls the speech, and where those accounts are used to directly benefit the employer? I don’t have statistics, nor have I conducted a survey, but I believe that this percentage is very low. With spokespeople hired as independent contractors this is easy, but with employees it seems to be hard. Take those contractor agreements and think about redrafting them for the employees.
So, yes, the ownership of social accounts and the contacts within them has been hotly debated and will continue to be. Be pragmatic about what both sides really want, and really need and I think it becomes very simple. Draft a simple agreement so both parties know what is expected and it becomes even more simple. If you don’t have any agreements, you may find yourself the next test case in this area.
Unrelated Food for Thought — and Homework?
Kootenai County just enacted their new social media policy( see Section 505 of their Policies). Give it a quick read and send me your comments to email@example.com or leave it in the comments. I have my own opinion on it and wonder what legal review it went through. I don’t envy folks that work employment law for governmental entities and their jobs are hard enough, but I think they shot an air ball on this one. Do you?