Heather Bussing

Heather Bussing on why social media contacts aren't trade secrets

Heather Bussing is a returning contributor to our HRExaminer Editorial Advisory Board. Heather has practiced employment and business law for over 20 years. She has represented employers, unions and employees in every aspect of employment and labor law including contract negotiations, discrimination and wage hour issues. While the courtroom is a place she’s very familiar with, her preferred approach to employment law is to prevent problems through early intervention and good policies and agreements. Full bio


When the recruiters and human resource professionals at Tru London found out I was an employment lawyer, the question they asked most was whether an employer could claim an employee’s social media contacts when the employee left.  The biggest concern was LinkedIn contacts for recruiters because, presumably, they include potential candidate relationships that the recruiter developed as part of their work for the company.
who owns social contacts on sites like Facebook or LinkedIn?
When asked this same question, Boston employment lawyer, Jay Shepherd responded “Shut up.” Shepherd explained that if an employer was really wondering about this, it probably did not understand that building a brand with social media involves employees actually using their own voice and personal networks.  So they own the contacts.

I agree completely.  Employees own their social media accounts and contacts.  Although I still think “Shut Up” is the best answer, here’s the legal explanation.

There’s Nothing to Fight About

While contacts have value to the person who made them, their value to the company is speculative, tenuous, and often temporary.  You can’t win a lawsuit unless there’s something to fight about and you can show you’ve lost something or been harmed.

Twitter followers change hourly and are determined entirely by the follower—not the employee.  They could as easily be someone the employee has never heard of as not.

Facebook friends can de-friend on a whim and may or may not be a cousin, guy from the dog park, best friend or mother.  Making the case that these people are valuable leads, candidates or clients is a great argument—but how are you going to prove it?  You would have to show that there is something of value there that the company can’t have without the employee’s involvement.   Good luck with that.

LinkedIn contacts are the most interesting because the connection is made by mutual consent, presumably based on some professional basis.  But think about this for a minute.  How would an employer make use of an employee’s LinkedIn connection?  “Hi Riley, this is Heather from the Law Firm.  You were a second-level  LinkedIn connection of one of our former attorneys who recently quit.  I was wondering if you also enjoy deposing actuaries to determine whether life insurance premiums have a disparate impact on women who have never been pregnant?”

Click.

Bzzzzzzzz.

While there is always some value in connections and social media contacts, it tends to be personal to the people involved.   The connection often is obscure and has little to do with something the employer can claim is important and valuable.  The employer would have to be able to show that it would be harmed if the employee left with it.  This is not the $3M contract moving to the competitor.  It’s more like employees leaving with pencils, sticky pads and a stapler.  The employer can get mad and claim that it was stolen, but it will cost more to try to get the stuff back than to let it go—even before the call to the lawyers.

It’s Not Secret

The legal basis for an employer claiming an employee’s social media contacts would be that they are “work for hire” or “trade secrets.”  I talked about work for hire in an earlier article Social Media at Work: Who Owns the Content?

Courts have found client lists, potential client lists and contact information to be trade secrets.  Back when you had to look up phone numbers for someone in another city or state in the phonebook collection at the library, contact information had significant value.  This led to the Rolodex rule– an employee could not take her Rolodex of clients with her when she left.  But she was free to recreate her list of contact information from independent sources and her own memory.  Contact information is not secret.  (Whether and how a former employee can solicit clients that the employer has a developed business relationships with is a different issue and not what I’m talking about here.)

Today (and for the past 20 years or so), you can find contact information everywhere.  And you can contact people many different ways—including through social media.  The value of contact information is greatly diluted because it’s so easy to get.

Last year, this was demonstrated to a trial court in New York in Sasqua Group, Inc. v. Courtney, 2010 U.S. Dist. LEXIS 93442.  A recruiter left her firm, taking her client list that included a list of potential candidates looking to change jobs.  When she went to work for a competitor in the same industry, the former employer claimed the contact list was a trade secret, relying on older cases that held that this type of information could be considered a trade secret. During the court hearing, the recruiter’s attorney showed the judge some basic sourcing on the Internet through Google searches, LinkedIn, Bloomberg and Facebook.  They were able to recreate most of the list from the courtroom in a short period of time.

The magistrate judge said that information about clients and potential clients may have been protected trade secrets when it took “greater time, energy and resources” to develop that information.  “However, for good or bad, the exponential proliferation of information made available through full-blown use of the Internet and the powerful tools it provides to access such information in 2010 is a very different story.”  The employer had additional problems because it didn’t have a non-compete or non-solicitation agreement– which are sometimes enforceable in some places. But the biggest problem was that the contact information could not be a trade secret, because it just wasn’t secret.

In order to have trade secret protection, the information has to have “independent economic value from not being generally known to, and not being readily ascertainable through proper means by, the public.”  18 United States Code, section 1839(3) defining “trade secret.”

An employee’s social media contacts are not secret, the information about those contacts is not secret and the value of that information to a former employee’s company is speculative, at best.

My best advice to employers: quit trying to own your employees’ contacts and get your own “friends.”

 
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