If your employees use LinkedIn to establish and maintain contacts for business purposes (such as sales), what happens to those accounts—and contacts—when the employee quits or is fired? Can an employer who has access to an employee’s LinkedIn profile change her password and replace information in her profile following her termination? No, says at least one federal judge in Pennsylvania recently, though that case is not yet over. As explained below, employers should be careful before assuming that they own their employees’ LinkedIn profiles.
Employer Access to High Level Executive Profiles
Edcomm, Inc., a banking education company, strongly urged its employees to create LinkedIn accounts using their company email addresses as a business networking tool. It had employee policies governing online postings and specified that if employees identified themselves as an Edcomm employee, they needed to use a specific template that contained pre-approved content about the company and referred to the company’s website. The company provided a photographer to take professional photos for employee use on their LinkedIn accounts. It also allowed some Edcomm employees to access, develop and administer the LinkedIn accounts of senior management, such as responding to invitations, inviting new contacts and researching good news stories to include on their LinkedIn pages.
After being acquired by another company, Edcomm, Inc. terminated its company president and founder, Linda Eagle, as well as several other top executives. After her termination, Edcomm locked Eagle out of her LinkedIn profile by changing her password. It then changed the information on the profile to that of the new acting CEO.
Company Argues LinkedIn Account was Akin to a Client List
Eagle sued Edcomm alleging numerous violations of state and federal law, including invasion of privacy by misappropriation of identity, misappropriation of publicity, identity theft and conversion. Edcomm argued that the LinkedIn accounts were used to contact new clients and promote the company’s services. As such, the company claimed that its take over of Eagle’s account was similar to the company keeping possession of a client list after an employee is terminated.
The Judge didn’t buy it. At a recent hearing, Judge Ronald Buckwalter stated that Edcomm likely had no right to change Eagle’s LinkedIn password and change her profile information. He noted that the company had no internal policy that would hand over ownership of employee profiles when employees left the company and that the LinkedIn accounts belonged to the individual employees.
Be Prepared For An Employee’s Departure
Although it is wise to implement a social media policy to address employee use of company information on personal or company-sponsored social media accounts, you need to be wary of who owns the rights to such information. First, as indicated in the Edcomm case above, you risk potential invasion of privacy and other claims. Second, the employee might have rights to the account independent of the employer, as established in an agreement between the service provider and the employee. At a minimum, consider implementing specific policies that address these issues up front, and consider what services your employees are using to establish and maintain connections with clients. The fact that contacts are connected through LinkedIn, Facebook, or some other social media site can significantly impact an argument that such contacts are protectable trade secrets. Lastly, don’t forget that forcing access to employees’ social media can be risky. Four states have enacted legislation to prohibit or restrict employers from asking for social media access and many other states are currently debating similar restrictions.