A man in California is being sued for $340,000 by his former employer. What did he do? This isn’t a case of bringing home the stapler from his cubicle. After resigning from the company, he took his Twitter followers with him—all 17,000 of them.
A recently filed lawsuit, covered by the New York Times among others, pits a California-based social media specialist named Noah Kravitz against his former company, the mobile phone business Phonedog.com. While employed with the company, Kravitz published tweets under the account name “@Phonedog_Noah.” The account was popular enough to surpass 17,000 followers by the time he left the company. Phonedog allowed Kravitz to keep his Twitter account as long as he posted occasionally, which he agreed to because he left on good terms.
Or so he thought. Kravitz later changed his account name to “@NoahKravitz,” while keeping all his followers. Eight months after the name change, PhoneDog sued Kravitz for a whopping $340,000, in effect saying that he wasn’t entitled to his Twitter followers—because he’d gained the following while working for PhoneDog. The amount was determined by valuing each follower at $2.50 per month, and multiplying $2.50 x 8 months x 17,000, totaling $340K.
Putting the math aside, not to mention how in the world anyone can put a dollar amount on the worth of an individual Twitter follower, the lawsuit brings to light some very interesting issues in the modern-day workplace. Like: When a social media account is affiliated with a company, who (or what) owns the profile? Are Twitter followers amassed from a business-related account yours to keep after you’ve left the business? By developing a social media profile, is an employee building his own personal brand, or the brand of the company employing him?
Lawsuits like the one facing Kravitz may help provide guidelines for these and other puzzling issues related to social media today. For now, all we can be sure about is that social media is on the rise in the workplace. Nearly half of all companies allow employees to use social during work hours, and 44% of companies track their employees’ social media use in and out of the office, according to the global law firm Proskauer. Increasingly, all employees—not just ones who specialize in social media, like Kravitz—are being asked to maintain official social media profiles. H&R Block, for example, encourages every employee to use social media in support of the company. “Our long-term vision is to have social across the enterprise,” says Scott Gulbransen, H&R Block’s director of social media.
Some companies have social media guidelines—Citi, H&R Block, SAP, and Edelman, to name a few. But most companies don’t. The workforce solutions firm Manpower found that only 29% of American companies have a formal policy regarding employee use of social networking sites. While all the ramifications of mixing personal and business social media profiles are unclear, most companies welcome (or even order) employees to evangelize for their brands through social media because that’s the way the world is going. It’s better to be in the game than left behind.
So who, exactly, owns a social media profile? It seems to be clear that Twitter or Facebook accounts that were created by a company, and that incorporate the company’s brand name(s) or logo (such as @SAP), are fully entitled to these accounts, even when employees who operate them depart. How the account is used may also determine who owns the profile. “If the account is built strictly based on interactions on behalf of the company, legally the company would most likely have the right” to the account, says Frank Eliason, a social media executive at Citi and former operator of @ComcastCares on Twitter.
On the other hand, if an individual employee’s name is either the account name (such as @FrankEliason) or part of the account name (like @PhoneDog_Noah), the employee may have the right to walk away with the account. Kravitz seems to have a pretty good case. There is no active engagement on PhoneDog’s current Twitter account, while Kravitz’s account is flourishing with conversations. In other words, it looks like the followers of @PhoneDog_Noah (and later, @NoahKravitz) are following the thoughts and insights of Noah Kravitz, not PhoneDog.
Ideally, clarifying the ownership of a social media account should be taken care of before any account is created, perhaps even before an employee’s first day of work. Zena Weist, Edelman Digital’s vice president of strategy, explains that companies don’t have the right to an account created by an employee “unless they have a written non-compete agreement that clearly states that the employer keeps the account.” If a non-compete containing a social media clause had been agreed to by Kravitz and PhoneDog, it would be crystal clear who had a right to the Twitter account and all those followers.
Even when Twitter account ownership isn’t black and white, it may be wise for companies to back off and err on the side of allowing employees, and even former employees, to use social media profiles however they please. Why? PhoneDog has been bashed in the media for going after Kravitz. The lawsuit has not only hurt the company’s brand, especially among tech-savvy millennials, but may also scare away potential employees. Younger workers in particular say they seek out employers that permit social networks in the workplace without any consequences. Brian Ellefritz, SAP’s vice president of global social media, says that “employees want their company to be open and accessible, from inside or out.” That goes before, during, and after being employed by the company.
Finally, employers must understand and be OK with the idea that social media will be used to boost not only the company’s brands, but the personal brands of its employees as well. “Companies need to accept [employees building brands] or they’ll die and be unable to recruit top talent,” says H&R Block’s Gulbransen.
Building up one’s personal brand through social media is one of the best ways for workers to have sustainable careers these days. Companies should understand this—and understand that it’s often in the best interests of both the company and the individual to allow workers to use social media to build their brands. In addition to supporting their employees, companies need to be upfront and define social media guidelines well before it seems necessary to file a lawsuit.
Dan Schawbel is the managing partner of Millennial Branding, a full-service personal branding agency. He speaks on the topic of personal branding, social media and Gen-Y workforce management for companies such as Google, Time Warner, Symantec, CitiGroup and IBM. Subscribe to his updates at Facebook.com/DanSchawbel.