In a late 2011 action called PhoneDog v
Kravitz, a mobile device news website sued a former
employee, Mr. Kravitz, in U.S. District Court in California.
Kravitz had left the company with a Twitter account, including
17,000 followers, that he had developed and cultivated for PhoneDog
during his employment. PhoneDog asked Kravitz to turn over the
password and he refused to do so.
PhoneDog took the position that the Twitter account and its
password involved a trade secret and that the failure of Kravitz to
hand these over constituted a misappropriation of a trade secret.
In this case, the alleged trade secret consisted of what was
essentially a customer list in the form of the 17,000 account
PhoneDog took the position that by maintaining the Twitter
accounts, Kravitz was using confidential information to disrupt
PhoneDog's relationship with its customers.
Presumably at the bottom of PhoneDog's complaint was the
fact that after resigning from PhoneDog, Kravitz began working for
one of PhoneDog's competitors and used his Twitter account on
behalf of the new employer.
For his part, Kravitz took the position that the account was his
and there was simply no economic relationship between PhoneDog and
any of the account's followers. As a result, his use of the
Twitter account did not disrupt any ongoing business.
Kravitz brought a motion to dismiss the action on the basis that
it could not possibly succeed. The Court disagreed with Kravitz,
holding that the accounts and their passwords could indeed
constitute trade secrets and therefore a trial would be necessary
to decide the point.
After litigating for about a year, the parties settled. Details
of the settlement have been maintained in confidence but Kravitz
does continue to use the Twitter user name that he created for the
account after leaving PhoneDog's employ. As a result, the final
answer to this interesting question will have to await some other
case at some other time.
In the meantime, however, this case serves as a useful reminder
to prospective employers and employees to at least consider the
ownership of social media accounts when entering into an employment
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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