By Erin M. Gormley
In a culture where viewing someone’s social media profile can serve as the modern equivalent to an in-person networking opportunity, it is crucial to be hyperaware of our online personas. And with public perception at the forefront of everyday life and business, our sense of ownership over social media channels and accounts can often be distorted. How much control do we have over our web presence, specifically on LinkedIn?
LinkedIn is an invaluable tool for networking and exploring employment opportunities. But what happens when the ownership and responsibility of a LinkedIn account becomes unclear? Say for example, an employee builds contacts using their employer’s company email address, and then no longer works for the company.
Generally, the presumption is that the individual portrayed on a LinkedIn profile owns the account, and therefore has discretion – regarding profile content and who has access. However, that is not always the case. A look at the recent case law shows that the following factors have been labeled as important in determining what rights ex-employees, and their former employers, have to the LinkedIn accounts that they access and maintain:
Creation of the Account
It is important to be aware of what the status of the account was: (1) prior to the start of the employee’s employment, (2) during their employment, and (3) after the termination of their employment. Factors to be considered are whether or not the employee already had the LinkedIn account prior to beginning the term of their employment, whether or not the creation of the account was a condition of their employment, and who created and provided content for the account – the employee or employer. If the employee inherited an account from the previous holder of their position, or otherwise received access to an account that was created by the employer as a condition of the employee’s employment, it weighs toward a finding that the employer is the owner of the account.
Control of the Account
Courts also look at whether or not the employer had access to the LinkedIn account. The more control the employer has had over the content, operation, and management of the account during and after the employee’s employment term, the more weight can be given to the argument that the employer owns the account. It is important to note that although an employee may have used a company email address to initially create or access an account, LinkedIn provides methods for ex-employees to change their primary email address in the event of a change in employment.
Social Media Policy
Courts also look at whether or not an employer had a social media policy in place within their employee handbook to clearly outline account ownership, and they will likely defer to such policy, assuming that the employee agreed to it, and assuming that the policy otherwise conforms to legal guidelines.
In order to best clarify any issue of LinkedIn account ownership, an employer must clearly delineate a social media policy in an employee handbook, which employees must agree to as a condition of employment. Employers should explicitly address employee expectations, social media use inside and outside the workplace, and identify individuals to maintain ownership and company social media platforms. While this type of policy may not be unconditionally binding in a court of law, it goes a long way in giving employers and employees, or ex-employees, a clear guide for what is expected and agreed upon during and after a term of employment.