On March 12, 2013, the United States District Court for the Eastern District of Pennsylvania ("the Court"), determined in Eagle v. Morgan, that, absent a policy to the contrary, an employee's LinkedIn account is not the property of the employer. The decision means that employers, in general, should not have an ownership expectation in their employee's LinkedIn accounts, and an employer's attempt to lock the employee out of his account after termination may lead to legal ramifications. Furthermore, while the issue was not before the Court, the Court noted that, even if a policy is in place, it may not be legally enforceable due to LinkedIn's User Agreement, which states that, even if an employee uses a LinkedIn account on behalf of a company, the employee is nevertheless individually bound by the User Agreement.
In May 2009, Edcomm began to use LinkedIn as a sales and marketing tool for Edcomm business. Edcomm employees were urged to create and actively use LinkedIn accounts for business development purposes. The employees were provided guidelines for the use of their accounts. To this end, Edcomm created policies regarding online contact, but never specifically addressed the issue of whether the LinkedIn accounts were the property of Edcomm or the employee. Edcomm did not require employees to have a LinkedIn account, nor did the company subsidize any fees associated with the maintenance of such accounts. Furthermore, since the accounts were created by the employees, and not Edcomm, the LinkedIn User Agreement was between LinkedIn and the employee. Consequently, the Court opined that it was, in fact, the employee, and not Edcomm, that retained ownership of the LinkedIn account following the termination of an employee's employment.
Take away: Social media continues to be murky area for employers. In the absence of the policy stating the contrary, employers will likely have no ownership right to an employee's LinkedIn account, even if the employee is urged to create one by the employer. Furthermore, even with a policy in place, any claim to ownership of the LinkedIn account may not be legally enforceable due to LinkedIn's User Agreement. If an employer wants to attempt to retain ownership of an employee's LinkedIn account, they should adhere to the following guidelines:
- The employer, not the employee, should create the account and thus enter into a User Agreement with LinkedIn;
- The employer should subsidize any fees associated with the maintenance of the employee accounts;
- The employer should have a policy that clearly states that the LinkedIn accounts are the property of the employer, and will remain the property of the employer following termination of an employee's employment; and
- The employer should consider incorporating into its written confidentiality or non-compete agreements that the LinkedIn accounts are the property of the employer.
If you have any questions about social media, you may contact Sarah J. Miley, (412) 394-2561, eat0@eau0eav0eaw0, Tracey Leahy, (313) 965-8533, eat1@eau1eav1eaw1 or another member of the Labor and Employment Practice Group.