Minnesota workers would likely refuse a request by an employer seeking the passwords to their Facebook, Twitter, LinkedIn or other social media accounts. However, what happens when an employee mingles business and personal matters in those accounts?
The answer depends on any employment agreements which the employee may have signed after receiving the job offer. Such agreements may cover matters such as compensation, benefits, or conditions for ending the employee-employer relationship.
Of course, employees who are being terminated may also be presented with new agreements, such as a severance or separation agreement. In fact, an employer may condition certain post-employment benefits or other incentives on the acceptance of that agreement’s terms.
Historically, severance agreements have covered areas such as non-compete clauses, limiting an employee’s access to the company’s intellectual property, and indemnification clauses, which limit an employee’s ability to ability to sue an employer for claims of discrimination, retaliation, harassment or other improper conduct. However, with the rise of social media — which might contain client networks — some fear that employers in Minnesota and nationwide might seek ownership or control of social media accounts in severance agreements.
Those fears became a reality for one woman, whose co-worker changed her LinkedIn account password after she left the company. The woman filed an anti-hacking claim under the Computer Fraud and Abuse Act in federal court. She claimed that her inability to access critical contacts on the social media site had damaged her ability to find new work. In particular, the woman alleged that she had lost out on one business opportunity which she valued at $100,000. The federal court disagreed, however, concluding that her claims were too speculative to impose liability under the CFAA, which requires a showing of actual damages — not the loss of potential or perceived business opportunities.
Until the law on this issue is more firmly established, employees are cautioned against mingling business and personal matters in social media accounts. Employees faced with a severance agreement are also cautioned about accepting its terms without consulting with an attorney.
Source: nbcnews.com, “When you and employer split, who gets your friends and followers?” Bob Sullivan, Oct. 12, 2012