There are so many reports, news media stories and internet discussions about the perils of social media in the workplace: Facebook “tell-all’s” by disgruntled employees; information theft; employee delay in updating their status on LinkedIn long after they have been walked to the door.
The question arises as to whether or not there is something employers can do to protect themselves against these social media minefields that await them each time they hire a new employee.
The answer, however, has not changed from the age-old protection for employers. Use an enforceable employment contract.
Employers have always used enforceable employment contracts (and yes, the key word is “enforceable” – a topic for an upcoming blog) as the best protection they can get against the typical problems which arise for employers after they have walked somebody to the door: protection of company confidential information; safeguard against solicitation of company customers or clients; protection from unfair competition. Enforceable contracts are also the gold standards to combat the evils of the post-employment social media perils. All it takes is a re-vamp of the employment contract template to include some social media protections.
One clause I now add into my employment contracts is to ensure that the confidentiality clauses that govern post-termination conduct of the employee (i.e. thou shall not steal Corporate Confidential Information during employment or any time thereafter) includes reference to the employee’s obligation to ensure inadvertent disclosure of Corporate confidential information while engaging in any social media activity. And of course, “social media activity” is going to be very broadly defined.
The contract should also expand the usual clause regarding return of Company property upon termination, to include deletion of any company information on any computer or technology device not owned by the Company.
Probably the easiest clause to adapt to the new social media wave but the most difficult to enforce is the non-solicitation clause. Typically, these restrictive clauses will prohibit any “direct or indirect” ex- employee solicitation of his or her previous customers/clients for a period of time after the termination of employment. Depending on the industry, some employers will want to consider defining the concept of “indirect” solicitation more specifically since social media blurs the lines between personal contacts and business contacts. Would a contractual requirement to “unfriend” any contacts which also are personal contacts stand up in court? I would have to think in many, if not most, cases it would not. And what about Twitter followers? That is even more complicated to restrict in a clear and unambiguous fashion, which is what is required to make these types of clauses enforceable in the first place. However, the employer cannot try to at least enforce the clauses if those expanded clauses are not in the contract in the first place – so it is worth the effort to change the contracts.
And lastly, to combat what is the most prevalent problem as related in the news stories, but really the least frequent to occur (at least in my practice) and what I affectionately refer to as the “my employer is a Rat” problem – essentially defaming entries on Facebook or similar on-line, public community social sites, is to include a prohibition against disparaging remarks of the employer right in the employment contract itself (stuck in with the protection clauses against theft or disclosure of confidential information) and insert further language if it not already there that says a breach of that provision entitles the employer to sue and collect legal costs against the employee on a full indemnity basis. Will that one stand up in court? Well, if it doesn’t, it keeps out what my Grandfather would call “the honest thief”.