The Social Network For The Recruiting Industry
Peeps, Pals and Property: Who Owns Your Contacts?
- Rating:
3.7 after 4 votes
Michael VanDervort who writes at Human Race Horses asked a great question the other day. Who owns your social network account? If you follow the links and comments there are both great discussion and great uncertainty.
So I thought I'd throw in my legal perspective. The answer is that if you are an employee or an independent contractor who uses social network accounts for work, the employer probably either owns the account or owns the right to use it.
Is Anything of Value at Stake?
I'm not sure how much of a problem this really is in many circumstances. If the account user is in the name of Al Latwitter and the employer is Recruitbored Inc., the employer isn't really going to find an account in a former employee's name useful. Nor is Al going to be interested in keeping or maintaining the company's Facebook profile. So the practical answer may be, "who cares?"
What about all of the followers, friends and contacts? I'm not sure that list is all that valuable either. A social network contact list is volatile, ephemeral and pretty loosey goosey. The account holder has no control over the people on the list who can hide, de-friend, unfollow, block and ignore you at the click of a button.
There is probably no trade secret protections for social media contact lists. A Facebook or Twitter contact list is very different than having a customer or member list with complete and far more permanent contact information such as mailing and email addresses. Most people actually receive their email and snail mail. While they can throw away your letter, they don't usually just disappear into thin air on a whim.
Also there is very little that is proprietary, exclusive or hard to find about a social network list. While it may be a pain in the rear to re-invite all your contacts on Facebook or collect your Twitter followers again—it's not that hard. You upload your email address book, then go check your friends' lists who have similar contacts to see who you forgot. Even if you have a kazillion "friends" or nest-mates, that is not the only place you have those contacts.
At least one court has decided that a contact list is not the same as a customer list and found that is was not protected as a trade secret. The employee was free to take it with him when he left.
As any good sourcer will tell you, people are not hard to find. The right person for a certain job is tricky. But if you have a name, even just a last name, it's a snap. (I often have to track down witnesses—zabasearch and pipl are great. It's also amazing what you can learn with Lexis.)
What About the Detailed Information and Data Related to Those Contacts?
Recruiters specialize in both personal relationships and the detailed information and data to begin and develop those relationships. A recruiter-candidate relationship or recruiter-employer relationship can be much like an physician-patient or an attorney-client relationship. The candidates and employers are connected to the recruiter far more than the company or firm. This is exactly why employer want non-compete agreements. See my earlier piece on those.
Developing, maintaining and utilizing the data and relationships with candidates and employers are the meat and potatoes of recruiting work. Making the placement and getting paid are often far more like dessert.
Taking your clients and data base with you is a bigger question than simply your social network contact list. But it's related and important to figure out.
Generally, you can't take your files, data base and client list on the way out the door unless you own the company. Nor can you call all your clients before you leave and tell them you're moving to firm Z and get their agreement to go with you. In both Canada and the US, this will likely be found to be a breach of duty of loyalty or an unfair business practice whether or not you have an non-compete agreement.
You can contact them once you've gone, using contact information publicly available and tell them you've moved-- unless you have an enforceable, non-compete that affects this.
Are Social Network Contact Lists Covered By Your NDA?
The question may also be already decided if you have a Nondisclosure Agreement that covers contact lists as well as client lists. If you don't have one yet, expect to see them soon. Even if it's worthless to the employer, lawyers and employers hate to lose anything that might be valuable.
So check the NDA. If you think that it may be an issue for you, carve "social network contact lists" out of the NDA by putting a sentence in that says it is excluded and retained by the employee.
Is it a Work for Hire?
Most work done by employees, on employer time, with employer equipment belongs to the employer. This is the work for hire doctrine. It is broad, all encompassing and it means that the accounts and contacts will be your employer's unless you make an agreement otherwise. Employers probably will not want to make an agreement otherwise. So if you are an employee and are using your social networks at work for the benefit of the employer, they probably belong to your employer.
If you are an independent contractor, then they are probably yours, but if your employer paid you to perform work involving those accounts, the employer may still retain a license to use your social network accounts, even after your work is through-- which could have the same result.
Bottom Line
Here are the best ways to handle the issue if you want to protect your social network account and contacts.
1. Agree with your employer at the time you start --either the job or the work with social networking-- about what's going to happen if you leave or are terminated. Get it in writing signed by the employer. However, it is entirely likely that the employer will demand to have continued access to the accounts, so reaching an agreement that you keep the account may not be possible if you want to keep the job.
2. Consider whether to use personal email or work email for the accounts. Your personal email probably makes the account less valuable and useful to the employer and is evidence that the account was intended to be yours. On the other hand, if you use your work email, it will become virtually useless to the employer once you are a former employee, unless the email on the account can be changed. (This is worth knowing ahead of time.) If you use personal email and lose the battle, you may have to come up with new user names for your personal email. So think about this before you do it.
3. For business accounts, make sure you make those contacts personal contacts on your own accounts too. That way if the employer wants the work account, you don't lose the contacts.
4. If, when you leave, your employer demands your passwords and account logins for account you believe are yours, refuse to give them. If your employer threatens to withhold your final paycheck, this is almost certainly a wage violation and illegal, so check with a lawyer or your state labor board.
5. But if you already have the contacts elsewhere, move on -- it's not worth the fight and you will probably lose.
So I thought I'd throw in my legal perspective. The answer is that if you are an employee or an independent contractor who uses social network accounts for work, the employer probably either owns the account or owns the right to use it.
Is Anything of Value at Stake?
I'm not sure how much of a problem this really is in many circumstances. If the account user is in the name of Al Latwitter and the employer is Recruitbored Inc., the employer isn't really going to find an account in a former employee's name useful. Nor is Al going to be interested in keeping or maintaining the company's Facebook profile. So the practical answer may be, "who cares?"
What about all of the followers, friends and contacts? I'm not sure that list is all that valuable either. A social network contact list is volatile, ephemeral and pretty loosey goosey. The account holder has no control over the people on the list who can hide, de-friend, unfollow, block and ignore you at the click of a button.
There is probably no trade secret protections for social media contact lists. A Facebook or Twitter contact list is very different than having a customer or member list with complete and far more permanent contact information such as mailing and email addresses. Most people actually receive their email and snail mail. While they can throw away your letter, they don't usually just disappear into thin air on a whim.
Also there is very little that is proprietary, exclusive or hard to find about a social network list. While it may be a pain in the rear to re-invite all your contacts on Facebook or collect your Twitter followers again—it's not that hard. You upload your email address book, then go check your friends' lists who have similar contacts to see who you forgot. Even if you have a kazillion "friends" or nest-mates, that is not the only place you have those contacts.
At least one court has decided that a contact list is not the same as a customer list and found that is was not protected as a trade secret. The employee was free to take it with him when he left.
As any good sourcer will tell you, people are not hard to find. The right person for a certain job is tricky. But if you have a name, even just a last name, it's a snap. (I often have to track down witnesses—zabasearch and pipl are great. It's also amazing what you can learn with Lexis.)
What About the Detailed Information and Data Related to Those Contacts?
Recruiters specialize in both personal relationships and the detailed information and data to begin and develop those relationships. A recruiter-candidate relationship or recruiter-employer relationship can be much like an physician-patient or an attorney-client relationship. The candidates and employers are connected to the recruiter far more than the company or firm. This is exactly why employer want non-compete agreements. See my earlier piece on those.
Developing, maintaining and utilizing the data and relationships with candidates and employers are the meat and potatoes of recruiting work. Making the placement and getting paid are often far more like dessert.
Taking your clients and data base with you is a bigger question than simply your social network contact list. But it's related and important to figure out.
Generally, you can't take your files, data base and client list on the way out the door unless you own the company. Nor can you call all your clients before you leave and tell them you're moving to firm Z and get their agreement to go with you. In both Canada and the US, this will likely be found to be a breach of duty of loyalty or an unfair business practice whether or not you have an non-compete agreement.
You can contact them once you've gone, using contact information publicly available and tell them you've moved-- unless you have an enforceable, non-compete that affects this.
Are Social Network Contact Lists Covered By Your NDA?
The question may also be already decided if you have a Nondisclosure Agreement that covers contact lists as well as client lists. If you don't have one yet, expect to see them soon. Even if it's worthless to the employer, lawyers and employers hate to lose anything that might be valuable.
So check the NDA. If you think that it may be an issue for you, carve "social network contact lists" out of the NDA by putting a sentence in that says it is excluded and retained by the employee.
Is it a Work for Hire?
Most work done by employees, on employer time, with employer equipment belongs to the employer. This is the work for hire doctrine. It is broad, all encompassing and it means that the accounts and contacts will be your employer's unless you make an agreement otherwise. Employers probably will not want to make an agreement otherwise. So if you are an employee and are using your social networks at work for the benefit of the employer, they probably belong to your employer.
If you are an independent contractor, then they are probably yours, but if your employer paid you to perform work involving those accounts, the employer may still retain a license to use your social network accounts, even after your work is through-- which could have the same result.
Bottom Line
Here are the best ways to handle the issue if you want to protect your social network account and contacts.
1. Agree with your employer at the time you start --either the job or the work with social networking-- about what's going to happen if you leave or are terminated. Get it in writing signed by the employer. However, it is entirely likely that the employer will demand to have continued access to the accounts, so reaching an agreement that you keep the account may not be possible if you want to keep the job.
2. Consider whether to use personal email or work email for the accounts. Your personal email probably makes the account less valuable and useful to the employer and is evidence that the account was intended to be yours. On the other hand, if you use your work email, it will become virtually useless to the employer once you are a former employee, unless the email on the account can be changed. (This is worth knowing ahead of time.) If you use personal email and lose the battle, you may have to come up with new user names for your personal email. So think about this before you do it.
3. For business accounts, make sure you make those contacts personal contacts on your own accounts too. That way if the employer wants the work account, you don't lose the contacts.
4. If, when you leave, your employer demands your passwords and account logins for account you believe are yours, refuse to give them. If your employer threatens to withhold your final paycheck, this is almost certainly a wage violation and illegal, so check with a lawyer or your state labor board.
5. But if you already have the contacts elsewhere, move on -- it's not worth the fight and you will probably lose.
Tags: bussing, social networks, tutorial tuesday
Replies to This Discussion
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Permalink Reply by Maureen Sharib on -
The answer is that if you are an employee or an independent contractor who uses social network accounts for work, the employer probably either owns the account or owns the right to use it.
Heather - can you clarify? If you're an independent contractor how do you have an employer? I'm kinda' confused.
I thought the article was wonderful and I love the expression loosey-goosey. Can you tell us how you get the names you have to track down as witnesses? From the litigants? And what does Lexis offer up?
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Permalink Reply by Amitai Givertz on -
The difference between contacts and connections is the relationship that exists between the two. You can have my contacts. Without a connection they have limited value. At least, so I'd like to think.
It doesn't take Sherlock Holmes to find out who my contacts are especially if he is one of them, or which of those I am actually "connected" with. And if I have maintained my contacts and connections with integrity, including with those who would claim ownership over them, or exclusive access even, who cares?
You can't own cuddles. You can't buy respect.
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Permalink Reply by Heather Bussing on -
That's exactly the difference Ami. Well put.
Maureen, great questions. My language was imprecise. I'll try again. If you are hired as an independent contractor to work on developing or improving a company's social network on Facebook or develop 1000 followers on Twitter for a company, then the subject of your contract can be the contracting company's property if it falls within the definition of work for hire (there are seven categories of copyright that are considered work for hire by independent contractors listed here). The contracting company will also want ownership of your work under the terms of the contract itself or will be determined to have a license to use it since they are the ones that asked you to perform the work and paid you to do it.
As for getting names of witnesses, once a lawsuit is filed, the attorneys get to subpoena people to show up so that we can take their depositions and ask them who has knowledge about this or that.
Lexis and Westlaw are paid subscription, legal research services. They have databases with all the online public records including marriage and divorce, real property records, and civil and criminal court records. If I have a name and location, I can find out if someone owns a house, what their mortgage is, when they last refinanced, if their credit card company ever sued them for failure to make payments, if they own a boat, the people they have sued or been sued by. I then follow up by getting the underlying documents and research the next level. For less than $50, I can also get a complete report from zabasearch (and others) which will run a more comprehensive background check (that picks up records that may not be online otherwise) and compiles information like who their neighbors are, names of relatives etc.
I also use Google Earth photographs to find out what somone's house and neighborhood looks like. Sometimes other interesting things show up like what cars they drive.
Many cities have comprehensive aerial photographs online showing development. I once used these photographs to prove that the tree that fell on the plaintiff's car did not come from my client's property. There are also companies that compile and can blow up satellite photographs for a fee. I've used those to get the license plates of other vehicles in the area of an accident and track down their owners.
If it is important to the lawsuit, we can also subpoena phone records, medical records, psychiatric records and bank records.
So if you have something to hide, don't file a lawsuit. And if you're paranoid about your privacy, don't buy anything or go outside. Big Brother is alive and well.
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Permalink Reply by Maureen Sharib on
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LOL Oh don't we all know it! Fascinatin' information, as always, coming from you!
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Permalink Reply by Rayanne on -
Thanks Heather..., incredibly insightful.
A former employer made me sign an "illegal" agreement as I was walking out the door. He didn't think I knew it was a bunch of hooey and it was better that way. It was already painful enough to say goodbye to a job I loved. But all things happen for a reason...
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Permalink Reply by Recruiting Animal on -
"As any good sourcer will tell you, people are not hard to find. The right person for a certain job is tricky. But if you have a name, even just a last name, it's a snap.
"(I often have to track down witnesses—zabasearch and pipl are great. It's also amazing what you can learn with Lexis.)"
Oh, Heather, please. You know I like you. You know I think you're smart. But whose feeding you crap like that. Finding people is very hard work. And the example you gave does not come from recruiting so it doesn't prove anything.
Find me a PhD who has a background in the Quality Control -- of yogurt -- in Canada. It wasn't easy. It wasn't easy. If I'd been a specialist in the dairy field or quality control, maybe it would have been easier. If I'd had unlimited finances for resources, it might have been easier. But with the phone, the internet and an industrial directory, it took a lot of work.
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Permalink Reply by Heather Bussing on
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Animal, it would take me a long time to find a Canadian quality control yogurt doctorate. That's exactly why I admire you so much.
But just for fun, how about Claude P. Champagne Phd, in Quebec?
It also only took me about 15 minutes to find photographs of you drinking a beer in a pub and the houses on your block, as well as your phone numbers, including your home number-- which I will be happy to pass along to any intelligent beautiful women who ask me for it.
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Permalink Reply by Recruiting Animal on
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Heather, very good.
I have to admit I wondered if I was walking into a trap there because that yogurt search was done quite a few years ago. Certainly before 9/11. Maybe 1999 or 2000 and there's a lot more online now than there was then. But it was hard. The best thing I found online at that time was an archive of brewery trade journals. It had interviews with QA guys in beer companies and some of them had the experience I needed.
Your luck with Mr Champagne gives your claim some substance but I still don't think that this proves your case. One potential candidate does not a search make. Usually you have to have three good people. And they're not easy to find.
It's not like checking people's locations once you have a last name. First you have to get that name.
As for my contact info, I live online. And most recruiters have some form of profile there. Many lawyers are easy to find too; the firms list their staff members on their sites.
But get me a decent sized batch of IT Auditors in Toronto. Things might have changed since I did my last search in that area but I joined the IT Audit organization just so I could find names and I wasn't able to becauase they don't list their membership online.
There weren't tons of them on Linkedin or even in the job board resume databases. I've had guys do online searches for people I'm looking for. They find a few names that aren't suitable candidates and that's it.
If the Recruiting Animal Show had money for a prize I would create a contest between telephone names sourcers and internet name sourcers. (And then I would give them searches I was pretty sure the internet sourcers wouldn't win).
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Permalink Reply by Heather Bussing on
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Thanks Animal. I have a deep appreciation for what recruiters do. And I really hate talking on the telephone, so I would fail miserably at your contest.
But I was thinking about Maureen's earlier question about how I find the names of witnesses, and it's the same basic idea-- I ask other people I think might know.
I also agree with your point about budget and resources. Having a war chest and subpoena powers makes it easier to get more information, especially from people disinclined to give it. It would be interesting to see if it made a difference in the quality of the information and time it took to get it. I think probably not.
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Permalink Reply by Maureen Sharib on
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I'm game for that contest.
;)
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Permalink Reply by Rayanne on
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ewww..., do I smell a challenge?
Sandra McCartt said:animal,
Check out a guy named Paul with TD Bank financial group. :)
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Permalink Reply by Steve Levy on -
I wonder why they're called "social networks" and not "business networks built while sitting at an employer's desk and using their phone and Internet connection"?
Heather, I have another question: In the course of building my social, uh, business network, I'm always introduced to people whom have nothing to do with my direct business per se. For instance, through Animal, I've been met his caretakers who looked after him when he was institutionalized at the Canadian Home for Loud Children. Apparently his parents had hypersenstive hearing; when young Michael was two he kept shouting, "I have to potty! I have to potty!" over and over again at all hours of the day and night. When his parents were slow to accommodate him - their hypersensitivity caused his words to rumble around inside their heads much like if one were sitting next to a pealing church bell - because they're heads were buried underneath their pillows, young Michael took matters into his own hands (so to speak); it wasn't pretty. So with no alternative, they had Michael committed. Thankfully, the two women in the picture took a liking to Michael and helped him moderate his loudspeak. Of course, the process did take 40 or so years...
These are lovely, kind souls who have been instrumental in helping Michael become a softer speaker in society but they have nothing to do with recruiting. Do companies own the contacts of people like these???
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