United States: When Bosses Can’t Be "Friends"

Modern Technology has increasingly blurred the line between business and personal lives, thanks in large part to social media that can broadcast employees' views to friends and the public in a heartbeat. Companies are increasingly tempted to move into what may be considered "personal" domains in order to maintain their reputation or control over employees' time. And that has translated into some serious debates in courtrooms and legislatures over the limits of corporate conduct.

For example, several states have passed laws restricting access to the social media accounts of employees and job applicants. Several federal bills with similar requirements are in the works. Typically, these laws forbid employers from requesting the passwords to  personal social media accounts. But some states also forbid employers from attempting to access the non-public sections  of these personal accounts.

"Something as simple as asking employees to make their profiles public or a manager sending a 'friend' request to an employee may run  afoul of the laws in your state," says Christine Lyon, a Morrison & Foerster partner who focuses on privacy and employment law. "Companies should consider the laws of the state where the employee is physically located."

Another prevalent question is who "owns" the followers and related materials of an employee's social media account when the employee leaves the company. Companies want to retain the loyalty of followers developed using company time and resources, while employees believe their following results from their own efforts and influence. One complicating factor: they may have used their personal  devices when posting to the account. "Several lawsuits involved cases where it wasn't clear if the account was for personal  or business purposes, and the employee used the account for both," says John Delaney, leader of Morrison & Foerster's  Social Media practice. Delaney recommends having employees sign a social media policy and structuring it to help  prevent legal disputes down the road. For example, employers should outline a process for opening new social media  accounts that require sign-off from an administrator, who can influence key decisions such as the account's name.

Employers should also make sure the policy states that the company's official social media accounts—those  bearing the company's name—cannot be used for personal business, he adds.

Keywords: social media, Tech

Mofo Tech Blog - A blog dedicated to information, trend-spotting & analysis for science & tech-based companies

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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