Full Podcast Transcript
NASIR: All right. Welcome to our business law podcast where we cover business in the news and add our legal twist for your listening benefit. My name is Nasir Pasha.
MATT: And I’m Matt Staub.
NASIR: And we have some construction next-door. I don’t know, we should do something about that, Matt. It’s getting in the way of our podcast.
MATT: Yeah, I know. I recommended the cease and desist letter but I guess they haven’t responded to it yet.
NASIR: Yeah, when is that going to get there? Well, at least we should mail it out today. See how that goes.
MATT: Mail out, yeah. It seems like it’d be kind of counterproductive mailing it out. It’s right next-door so you would have to go somewhere to mail it and then they would deliver it right next to the spot where you’re located.
NASIR: I would pass by their door on the way to the post office.
MATT: Yeah, that happens sometimes. I’ve actually thought about that before and I’ve mailed things out in the same, like, really close to where my office is but you have to mail it out. So, it’s just kind of weird in that sense.
NASIR: I don’t know if it’s a myth but isn’t there some kind of federal law that prohibits you from actually delivering mail into a federal mailbox receptacle of someone’s home?
MATT: Yes, I got in trouble for that in high school. My friend and I, we went around to a neighbourhood and we had to deliver flyers for the pizza place that we were working at. We were supposed to go up to every door and put it on the door. I forget exactly where we were supposed to do it. But then, the driveways are really long so we just got tired of it so we just started to…
NASIR: Put it in the post box, right?
MATT: Yeah, we started putting it in people’s mailboxes and then the business got a call saying that we can’t do that because it’s against the law.
NASIR: Almost got arrested. That’s your big brush with the law, right?
MATT: Yeah, actually got charged with 80 counts of a federal crime, but that’s fine.
NASIR: Mail fraud.
MATT: Pretty serious.
NASIR: “This wasn’t delivered by my postman! This is from a pizza place down the road.”
MATT: It did work, though. We got a lot of business from that neighbourhood that week. So, pretty good overall, positive experience for the company.
NASIR: Well, I don’t know. In California and elsewhere in urban places, it seems like mailboxes are kind of going to the wayside now.
MATT: Oh, yeah.
NASIR: They all have, like, central facilities where you have to go walk down the street and pick it up now and things like that.
MATT: Yeah, it’s definitely shifting. But I think that’s in part because of the presence of online ways to do things.
NASIR: That’s a great transition, yeah.
MATT: It wasn’t even purposeful with me telling that story how I was supposed to go delivering flyers. Nowadays, we might just use social media – well, not that pizza place because it’s closed down but, if it was still around, it wouldn’t have either because it never did anything proactive.
NASIR: Wow. Ouch.
MATT: If it wanted to and if it was still in existence, yeah, it could use some social media to reach its customers. So, I guess, let’s say I was in that situation and we were using social media, but I was the one in charge of all the social media accounts, like I said, I’m not an owner, I’m just an employee there, and they probably would put me in charge of social media and so it’s a conundrum for employers because you put one of your employees, maybe someone who’s even really low down on the totem pole, to be in charge of the social media accounts and then, you know, something might happen and then you’re looking at the employee leaves or there’s some dispute or whatever, you have to look at who owns these accounts. So, I think there’s a lot and we’ve talked about this a long time ago, that was more of just a lawsuit, but this is a pretty interesting subject and something that employers, I think, need to hammer down before they just really jump into it without thinking about it.
NASIR: Yeah. If you think about it, this is an actual real problem. I know sometimes we talk about legal issues that may not relate to everyone, but I would say that social media and, you know, obviously, even our firm participates in that little experiment of marketing, et cetera. But, when it comes to social media, every small business is pretty much involved. And so, imagine you hire an employee and you have them create a social media account for the business, your expectation is that you own that account. But what about the contacts that they make? For example, let’s say that they’re a sales rep of some sort and they’re an employee and then you give them a whole address book of email addresses to add on LinkedIn and they develop those contacts and so forth. But then, a year later, the employee leaves, the employer may be under the impression that, hey, those are your contacts and so, therefore, you should be able to keep them or that account was created for that purpose, even though it’s in the individual’s name. And so, these are all these issues that, on one hand, most of these issues have been settled as far as how to resolve them. But, on the other hand, there’s also new legislation that keeps coming about that also focuses on the privacy and the protections of employees in relation to these social media accounts. So, you kind of have to weigh the balance of both of these and go on a step-by-step basis to see what you actually own and what you’re entitled to own as well.
MATT: Yeah, and I think there’s varying levels of this ownership. So, you know, a right to access or even control an account. I mean, that’d be something that’d be pretty easy to handle if someone were to not be a part of the company anymore. And then, you just keep moving up. So, ownership of the account name, okay. Ownership of the account content, now, to me, that’s the first time we’re really going to be something of real value there and then, like you mentioned, ownership of the relationships of the account and the contacts, things like that. So, you obviously need to think about this before you just, like I said, give access to one of your employees on how much discretion you want to give them. If you’re a big – or bigger – company and you have a director of marketing or – I don’t know – directors of social media or things like that or whatever names – I’m not a big title person.
NASIR: You definitely have dedicated people to social media now. Even if you have a marketing department, there may be just a very few set of people or even one person in a small business that is dedicated to posting online.
MATT: Right. So, like all things we talk about, just put a policy in place and have it agreed to because you don’t want to, I mean, you had mentioned the contacts side of it. I guess there’s been quite a few lawsuits or cases in recent years of contacts made via LinkedIn.
NASIR: Getting on social media from a business perspective on a business profile just doesn’t have the same effect if it’s person to person, you know, under the persona of an individual rather than the company. And so, I can see why employers would encourage their employees, as individuals, to sign up for these accounts because it’s a lot more personable, you know. It’s a lot more effective whereas, you know, if you have Target.com posting something versus the CEO or a customer representative posting something, there’s a little bit more relationship there. And so, the problem is though, when you do that, the implications of who owns that account, the relationships, the contacts, and the content – just like Matt mentioned – is a little bit more ambiguous because, well, I would say this, as far as some actionable advice here is that, if the name of the account is under the individual’s name, I would just go ahead and assume that’s in their control and it’s in their property.
NASIR: Even with proper contracts and policies, it’s still difficult because, in about 17 or so states, they have laws that particularly protect employees from having to give up their passwords for these types of accounts and things like that. And then, on the other hand, if it’s in the name of the company, even still I’d be concerned, but I would make the assumption that it’s in the employer’s business’ name, but make sure you have that documentation to back that up as well.
MATT: Yeah, I think that’s a good rule of thumb and, like we were just mentioning, there’s been lawsuits on this already and this is something I mentioned before too, you need to have this in writing. So, from the few decisions that have been out there, the courts are basically saying, you know, you need a written agreement that’s clear and, if it doesn’t really detail, if there’s nothing in writing saying, you know, “This employee owns this,” or the employer owns this or access to that, then not a great situation for the employer.
There’s another thing I wanted to mention, too. So, this is the fine line to me. Let’s say you have this one person in-charge of the social media for the business, obviously, that’s a huge chunk of what they do. But where do you draw the line in terms of their social media usage during work hours that’s beneficial to the business versus something that might be more really to the individual on a personal level? Does that make sense? I don’t know.
NASIR: Yeah, it’s a good point because here, okay, you have an individual that, again, may be in some kind of sales and marketing capacity and they’re using that individual account for both personal – or even if they’re not, but let’s say they are using it for both personal – and work-related activities, that’s going to go beyond the regular work week and then, even if they aren’t using it for personal, social media is 24/7 and, if they get messaged or tagged and responded to, it’s similar to an email – they could ignore it but, at the same time, part of the social media aspect is engagement and, if you get something on Friday night and delaying it until Monday may not be good for your business and drawing that line of when they’re working everything to overtime rules to aspects of use of technology and any kind of reimbursement for that aspect, it has implications, definitely. That’s a good point.
MATT: Yeah. Just to go back on one of the recent case here, too. Where was this in? This looks like it’s in the eastern district of Pennsylvania. Well, basically, they ruled for the individual, not the business, saying that there was never a policy of requiring employees to use LinkedIn. The employer did not dictate contents of the employee’s LinkedIn account. The employer did not pay for the LinkedIn accounts which LinkedIn can be free so I don’t…
NASIR: If you are paying for your account, you’re probably being scammed somehow. In fact, if you want me to create one for you, you know, just send us some money.
MATT: Yeah, and the employer did not maintain a separate account. So, the LinkedIn thing is weird to me. I don’t know.
NASIR: No, you’re right, because LinkedIn specifically, like, very individual-focused. It’s individuals that are looking for jobs, trying to network. It’s very business-related. But, you know, even the fact that the primary focus is who your current employer is and who your former employer is, it lends to the fact that this is an account that sticks to the individual. So, if you go to the next job, then that current employer is going to become the former employer and you’re going to fill it in with your own. So, I agree with you. LinkedIn compared to other things like Instagram and so forth, like, for example, even if it’s under an individual’s account, for purposes of making it clear for ownership, you have to have the company create the account, possibly under a pseudonym or maybe under the individual’s name, but I’d just be very reluctant to do that if your intention is to keep that account.
I would look at it like this. I have an employee that is very social – no pun intended – and knows what they’re doing on social media. I’m going to encourage them to use their personal account to market and they’re going to be compensated for that accordingly. But, if they leave, then I’m going to lose that account and it’s the same way I’m losing that employee’s benefit – I’m losing the accounts and the intellectual property that that employee may have developed in the course of the business as well.
MATT: Yeah. I mean, I would just think you’d want the business name in there anyways and not some individual that I don’t know who this person is.
NASIR: Yeah, I know. You can have the name of the person and the business name in there so it’s very, very closely related that this is a separate account for purposes of the business. You may have another personal Instagram account or LinkedIn account, but this is for you as an individual for business. That might be easier to handle, for sure.
NASIR: There was also this one case, it was interesting because this person was actually on medical leave and the employer, you know, they still wanted to make sure the account was being managed, but it was under the personal account. And so, for a couple of weeks, while the person was on medical leave, they were using the account for promotion and, when the employee came back, they found out about it and actually ended up suing the employer for that use and actually won. So, even though this is a relatively new area of business practice, it’s just opening up all these weird different issues that a lot of businesses probably would not easily anticipate or not necessarily as intuitive as many people may think.
MATT: Yeah, and we even talk about social media with drones so that’s another area.
NASIR: With the drones?
MATT: Oh, yeah, well, I’m just saying more technology-based things that the law is going to be completely different now than it will be five years from now like all the social media stuff.
NASIR: Quick update on drones. The FAA actually just released a whole slew of guidelines for commercial use of drones. If you recall our last episode on this, there hadn’t been any real changes in the last year or two, and all of a sudden, that happened which was pretty cool.
MATT: I agree.
NASIR: I thought it was cool. Well, anyway, that’s ending our drone episode.
NASIR: Oh, no. Wait. Social media, I mean.
MATT: Social media drones.
NASIR: That’s why I got confused when you said “social media drones” but now I understand what you’re saying. All right. Well, thanks for joining us, everyone. Have a good week.
MATT: Keep it sound and keep it smart.