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photo of woman taking selfie in mirror on HRExaminer.com article by Heather Bussing April 20, 2015

If a company starts to control what an employee does on a personal social media account, it could become liable for the employee’s actions and content there.

A reader wrote and asked me if her employer could make her change her LinkedIn profile picture. The marketing department was doing an employer branding campaign and wanted all the employee pictures to have the same look. So they were bringing in a photographer to take professional images, then requiring employees to use the new photographs on their LinkedIn profile.

I can see both sides. The employee doesn’t want the company telling her what to put on her personal LinkedIn account. The employer wants the people who work there to look great online, especially on LinkedIn where it indicates the employee works for the company.

Legally, the LinkedIn account belongs to the employee; it is her personal account. Even though the work history shows the employee works for the company, that is simply a fact. It doesn’t give the employer a legal right to control the content of the employee’s account.

If a company starts to control what an employee does on a personal social media account, the company could become liable for the employee’s actions and content there. The basic principle of agency law is: if you control it, it’s yours. This is especially true for employers who are legally responsible for almost everything their employees do in the course and scope of their employment, even if the employer did not ask them to do it. (Intentional injuries and sexual harassment are generally not in the course and scope of employment, but even that can depend on the circumstances.)

Still, the employer does have an interest in its employees looking professional and presenting well online because it reflects on the company. I like the idea of bringing in a professional photographer to do great portraits. And if the pictures turn out well, most employees would be happy to use them.

The employer can ask, it can make a policy, and it can try to require employees to use the photos. But it probably can’t legally make them use the new photos because the account belongs to the employee, not the company.

Also, in some states like California, it would be difficult to discipline an employee for refusing to use the photo. That is because California companies cannot generally discipline employees for off-duty conduct. If the account belongs to the employee, then what the employee does there is not the employer’s work. California employees also have privacy rights that could come into play.

So the company will have to try to persuade the employees to use the new photos. A professional photographer is a great start. An incentive payment or reward to rent the space while the employee is working for the company might also work.

But employers should generally stay out of what employees do on their personal social media accounts, even LinkedIn.

 

Additional Resources

8 Reasons Social Media Policies Backfire

What if Your Policy Violates the NLRA?

Trash Your Social Media Policy

Behaving Badly Online and Defamation

It’s No Secret: Why Contacts Aren’t Trade Secrets

Social Media at Work–Who Owns the Content?

Social Media, Blogging and Copyright

Social Media Policies: Who’s In Control?

Don’t Take Bad Social Media Advice

Looking Bad

FTC Social Media Disclosure Requirements

How Employers Can Still See Employee Social Media Accounts

Why I Killed My LinkedIn Account

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