I have no breaking news alert or court decision that I want to complain about today. Instead, I want to pass on some cautionary words about your company’s social media accounts.
This hasn’t happened to very many of my clients, but when it does, it’s devastating. I’m talking about the company losing control of its social media accounts. It can happen. What’s worse, it can be a very costly matter to try to regain custody.
No doubt your social media sites are controlled by an employee who has been designated as the administrator of the account, perhaps someone in the Information Systems or Marketing Department. He or she has complete control of building company profiles, doing a spring (or COVID) cleaning for the accounts, or just adding updates. That person is viewed as the “owner” of the site for all practical purposes as far as the platform is concerned (i.e., Facebook).
So, what happens when you fire that person, and they become vindictive and don’t give up control? No really… what does happen?
This is a “conversion” of your company’s property, but unless you sue that person and the social media company to get the administrator rights and retrieve the account, it is lost to your company. Sure, you can start a new social media account, but the old one is still out there (and may be the one that is given priority by search engines), and now there are two seemingly official social media accounts.
This can become even more damaging to the company if that person continues to post updates that appear to be your official company statements but aren’t. Yep, social media can be a real blessing, but it can also become a real curse.
Parenthetically, I have received several calls lately from potential new clients because of online “reviews” that are perceived as harmful to their reputations. It’s one thing to have a five-star rating and one disgruntled crackpot talking smack about the company. It’s another thing if that person is posting numerous reviews with different fictitious names and none of it is true. That’s called libel. At that point, you really have no choice but to seek an injunction, and this can be costly and time consuming.
Is there anything a company can do to prevent this? Glad you asked. But, probably not unless the owner of the company is the administrator and never appoints a proxy. However, one a best practice is to always have more than one person in possession of logins and passwords for corporate social media accounts.
However, if your accounts are held by one person, or if you want some added protection, you can make it more likely that the employee will see the wisdom in turning over the administrator rights by using a carrot and a stick. Carrot, payment of some small amount for the relinquishment of rights (i.e., paying unused vacation time or severance). And, if they don’t do what is right, you can touch their circumstances with some painful consequences.
Consider an “Administrator Agreement” with the employee when they are delegated the responsibility (perhaps with some token wage adjustment as consideration) or at the start of employment if this is going to be part of the employee’s job. Make the employment offer conditioned upon them signing such an agreement on their first day.
In the Administrator Agreement, the employee acknowledges the company’s sole ownership of the accounts, and they agree to turn over administrator rights when employment ends for any reason (or at any time upon request by the company). You could also include liquidated damages and injunctive relief if the employee breaches their obligations and attorneys’ fees for the company if it must file a lawsuit to enforce the agreement.
Have I ever seen one of these agreements? No, honestly, I haven’t and right now I am feeling just a tad bit clever about this idea. I have only heard that employers need “policies.” However, the problem with addressing this in a policy in the employee handbook is that every handbook starts off (or should) by saying: “Nothing in this Handbook creates any contractual rights." That cuts both ways (which is why the contractual limitations period must be kept in a separate document and not incorporated into the handbook).
The Administrator Agreement may already exist, but this idea came to me a couple of weeks ago when yet another client sadly lost control of its social media account. Sales employees sign non-compete agreements, so they can’t run off with your clients, so why wouldn’t you have an agreement for the administrator of your social media accounts to protect your company’s property rights for this important aspect of your business too?
- Senior Attorney
An attorney in the firm’s Detroit office, Claudia D. Orr exclusively represents and advises employers and management in employment and labor law matters.
Ms. Orr's clients include Fortune 500 companies, local governments ...
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