Employers Can’t Control Personal SM Accounts

i love my job by peretzpup

i love my job by peretzpup

Last week a friend of mine asked about if employers can require employees to do anything with their social media accounts. Apparently, his friend’s employer asked the employees to change the cover photos and avatars on their Facebook pages to some type of advertising for the company.

If a company wants to be involved in social media, they need to create their own accounts on Facebook, Twitter, and any other site where they want to have a presence. They should also have crystal clear contracts with the employees and/or businesses who manage these accounts that state how they should be used, who will own the intellectual property on the sites, and who will own the accounts and followers if the employee leaves or changes positions or if the company hires another company to manage their social media.

Back to employers telling employees what to do on their personal accounts – your personal Facebook account is your personal property. Your employer can prohibit you from being on your personal accounts during work hours or work computers and they can discipline you for violating your employment contract on it (as long as it doesn’t violate the NLRA). But to require you to promote the company on your personal page? That would be a big “Oh hell no.”

I checked out Facebook’s terms of service and they clearly state you must use Facebook Apps for all promotions and that you will not use “your personal timeline for your own commercial gain (such as selling your status update to an advertiser).” If your employment is contingent on promoting the business on your personal account, I see a valid argument that you essentially sold your part of your timeline to your employer.

On the other hand, companies want their employees to be happy in general and want them to support the product. I see no problem in companies making images available if employees wanted to voluntarily change their profile photos. I think it would be awesome if the company allowed employees to take pictures of themselves with a company mural or sign to use in social media if they were so inclined. This would have to be completely voluntary with no consequences, positive or negative, based on employee participation.

I’m a big proponent of employers leaving employees alone when it comes to their personal time and social media accounts as long as the employees aren’t violating company policies. If you think your employer is asking you to do something questionable with your social media accounts, check the website’s terms of service and consult a social media attorney (like me) in your community.

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Comments

  1. Hello Ruth, We have several clients ask us for a copy of a standard social media agreement to sign with their employees. Is there a template that you can recommend? 

    • This is an area of law that is constantly evolving. I can’t recommend a template because the next report from the National Labor Relations Board might say that what was permissible last week is now impermissible. I’d say it’s best to hire an attorney to write your social media policy and then have them review it at least annually to make sure it is still in compliance with the National Labor Relations Act.

      • Catherine Wyeth says:

        I have a question, My employer is a bar/restaurant that is requiring all employees to post on their personal page for their friends and followers to come to our business. Their argument is that other bars in the industry do the same thing. It is such a big requirement that owners have said that if they dont they will need to find a new job. I personally made a private work related page and invited friends who choose to follow for updates on events at my work. However I think it is wrong to use my personal friends for their own personal gain. If i am happy to post something willingly then I will but not because I am forced to because i dont want to lose my job… is this a valid argument?

        • If I was in this situation, I’d print out the Facebook Terms of Service, highlight the provisions that show that what my employer is asking me to do is a violation of Facebook, and see what they say. I can’t give legal advice via my blog, but you should consult an employment lawyer in your area and see what he/she says about it.

  2. re: “violating your employment contract”
    so, if there is no specific verbiage in your contract regarding things you say or post online, the employer can’t discipline for something posted on social?

    • Not necessarily. If your contract or employment handbook prohibit sharing trade secrets or bad-mouthing your clients, you can be fired for doing it regardless of what forum you use to do it. If you’re an at-will employee, you can be fired for a lot of what you post online if your boss doesn’t like it. Your employer can’t legally fire you for doing anything that is protected by the National Labor Relations Act, like having public discussions with your fellow employees about your wages or work conditions: http://bit.ly/xVhbUj.

  3. Hi I was hoping for some advice regarding Twitter, can an employer print off your whole account & tweets to us as gross misconduct for saying you have a s**t job or anything of similar content?

    • You should have a consultation with an employment attorney in your area. Some online statements are protected by the National Labor Relations Act and some aren’t. I did a post on this last year about some of the differences: http://bit.ly/zcSG1d. I hope it helps.

  4. bananar1969 says:

    Can an employer tell me who I can and cannot have on my personal social media pages (Facebook, Twitter etc.)?

  5. VitorGGA says:

    I try monitor my employers using https://apps.facebook.com/xeeftmonitor

  6. I understand that an employer has every right to 1) block and prohibit the use of social media during working hours and from the employers network and 2) to limit what a person can say about their job through the company confidentiality policy. But is it legal to say “In order to be employed by this company you may not have an account on facebook, twitter, et c. at all?” I would think this is an unfair intrusion into life outside of work and not allowable

    • That seems like the boss is over-reaching into employees’ personal lives, but you’d have to hire an attorney to see if it’s legal where you live. I know of an author who would suggest employees create social media accounts using alter egos to be on social media without their bosses finding out about it.

  7. Karen Dunkley says:

    Hi, I have been warned by my boss about posting on Facebook about my job. A- My account is on private, so she wouldn’t have known what I put. B- She told me I could get the sack!
    Is this true? x

  8. Hello my siduation is a little compacted I work at a gun store in TX and I’m on a number of gun groups on Facebook and before I get into the details I want to let you know I have we’re I work hidden and I’ve never said to others were I work and keep my account as far as I can from my work. But what happen is I started a group with some friends and what happen is some of the post that were sent to my newsfeed got on my bosses profile they got very angry about it and I can under stand why so what I did was to adjust my settings so they can’t see who post on my page and to what I thought would make the happy I quit that group but what they want now is that group closed down and me out of all the other groups I’m in I’ve tried to tell them I’m out of the group and have no control of what they do with it now and now I’m in fear of my job can they tell me what groups I can be in or do on Facebook

    • Of course the answer to every legal question is “It depends.” You should schedule a consult with a lawyer to discuss your situation. I have heard of other situations where at-will employees have been fired because of social media posts even though the posts in question were not illegal or a direct violation of their employment contract.

  9. Hi – my employer took individual pictures of all employees last year for the company’s website. I was going to use that picture on my social media feeds, but I was told that those pictures are strictly for company’s use. Can a picture of me be owned and can only be used by my company? Plus, what is really strange is that they have asked us for our social media account information as a requirement for proposal they are doing for a prospect…
    Does the company own a photo of me because they took it? Can they bar me completely from using my own picture? How can they bar me from using it in social media, yet ask me for my social media info?
    Many thanks for any insight you can provide?

    • The fact that you are in a photograph does not automatically give you rights to it. It is possible that your employer owns the copyright in the photo and can prevent you from using it without their permission.

      These cases are always fact-specific. You’d have to have a lawyer look at all the details of your circumstances to definitively say who has what rights to the photo in question.

  10. My husband is a cameraman for news and he takes pictures of the events for his twitter account, is he allowed to watermark them, or do they belong to his employer because he is taking the picture on their time?

    • That’s an interesting question. Of course the answer is “It depends.” If he was my client, I’d probably start by examining his employment contract, job description, and his employer’s social media and intellectual property policies and likely have a conversation with the employer. If he really wants to know the answer, he should consult a copyright attorney in his community.

  11. Katherine says:

    I live in Florida, for the past five and a half years I have been employed by my father’s jewelry company (full-time) and his fiance’s auction company (part-time, and as a favor to both of them.) I quit the auction in April because it was a two-hour commute and I would get home late just to have to get up very early for my full-time job. So, I gave my two-months notice (very generous time to find a new employee to fill my position, in my opinion.) I have both jobs on my Facebook, when I left the auction, I changed the auction’s date from ’2009-Present’ to ’2009-April 2014′ and I thought nothing of this, just figured that I was updating my work status. My father/boss told me today that I offended his fiancé and that it looks bad for both businesses, two things that I don’t understand at all. I have never once said anything negative about either job or either boss, I simply updated my work status. I don’t feel that I should even be asked to take the auction part down, it feels like that would just be completely disregarding the five years of work that I did there. I would truly appreciate your opinion on this situation and how to go about dealing with my father/boss…? Thank you in advance.

    • Ruth Carter says:

      I can’t give legal advice via this blog so I can’t tell you whether you’ve done anything legally wrong or whether they can make you can your profile. I will say I’ve seen plenty of instances where people are upset or angry and want to make someone act in a particular way but there are no avenues in the legal system to use to make it happen. If you want more information about your situation, you should schedule a consultation with an employment attorney in your community.

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  1. [...] have progressed beyond the lunacy of burying their heads in the sand or attempting to fully control the social activities of their employees (as if that were even possible [...]

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  3. [...] have progressed beyond the lunacy of burying their heads in the sand or attempting to fully control the social activities of their employees (as if that were even possible [...]

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