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Do You Have a Social Media Non-Compete?

social media at workThis is probably a touchy subject in some circles, but as more and more companies encourage social media participation from employees and even create job titles such as Director of Community, it’s something that marketers are going to need to deal with. Many companies have created social media policies (some examples) and strategies to address things like who can represent the company and what they can and can’t say, but as companies put real faces, not company logos, on the profiles of their staff and those real faces connect and build relationships, the growing question is – who owns the content, profile and even followers?

Betty is great at her job, she’s totally engaging, builds relationships quickly on twitter and is often called by the media to pull quotes from her blog – and, Betty is doing such a great job she just got hired by your biggest competitor. Who owns @bettyserves (not real) and her 13,466 followers. Building the profile and relationships were done in the name of the company, but the connection was really to Betty.

Now Bob, he’s you’re key account guy, he’s totally engaging, builds relationships quickly in the field and is the go to guy in the industry when it comes to innovation – and, Bob is doing such a great job he just got an offer from your biggest competitor – oh, and Bob’s been under a non-compete agreement for about five years. Building the territory and relationships were done in the name of the company, but the connection was really to Bob.

So, what’s the difference? Is there really any? Is it simply the medium?

Like Bob’s non-compete, this is likely a new area of negotiation and one that both employers and employees will need to address.

Some more reading
Beth Harte – Who owns your twitter or Facebook connections?
Twitter in the workplace

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  • http://nuancelabs.com Andy Ciordia

    Noncompete, or how do lawyers deal with transitioning jobs? As our legal team has migrated through many channels over the years we are issued a stay or go notification from the company. If you are personally branding yourself that’s one thing, if you are more branding your role in a company then you need to walk carefully. I’d rather people make secondary roles for their business affiliations if this is something that may change in the future so it won’t be such a problem. Then one day you say, hey, I loved working here but I’m moving on. I’ll post this a few times and if you want to follow, do so, else this role is now going to the new Tom in sales.

    Thoughts..

    -a

  • http://www.confessionsofamom.com Beth Gasser

    Wow, I never really thought about it like that. Kind of scary. I am going to RT on Twitter. I hope you get more thoughts and ideas.

  • http://www.wildfiremarketinggroup.com Jeremy L. Knauff

    John,

    Certainly a thought-provoking article! The bottom line in my non-legal mind is that if it’s done on the company’s time, it belongs to the company, but we’ll have to see how that plays out if this situation ever ends up in court.

  • http://www.more-for-small-business.com Kris Bovay

    Even though legally the contact is made with ‘Betty’; the reality is that if Betty goes to the competition and sets up a new account and continues to produce content/connections that bring traffic – she’ll get some real ‘followers’. The original company has got to have someone of the same caliber of Betty to keep the space and the profile. This will be a big challenge. Interesting.

  • http://123socialmedia.com Barry Hurd

    (thanks for the pointer to my policy collection)

    Perhaps a chicken or the egg?

    This is really a tricky legal issue, ranging from a whole range of terms of service, non-competes, non-disclosures, confidentiality, and everything in-between.

    To draw some larger comparisons- when Robert Scoble left Microsoft he took a huge following with him. As we see more and more “social media celebrities” or simply spokespeople, we see a strange mix of technology, marketing, customer service, administrative, etc personnel who are now “speaking” on behalf of the company.

    Having come from a f50 company and organizing a massive home office salesforce, this question also came into play when accounts (home phone numbers) became high value assets that were accidentally tied to the employees (some who left, taking numbers and calls with them.)

    Great question.

    I suggest it is something any employer looks at and identifies well before it becomes a crisis.

    ~Barry

  • http://www.business901.com/ Joe Dager

    Marketing is telling us to get more personal, transparent and authentic. But at what cost? Tough questions and ones that you have to deal with as a small business owner. Is the brand your company or Betty? If you are concerned, maybe you should be updating your non-competes on an annual basis.

    As times get tough, this usually becomes more of an issue. One of my suggestions on how to accelerate sales is to go hire your competitors superstar. So, if someone does that, where does that leave you? And he who has the best lawyers, usually win. Just watch Boston Legal, oops they are gone.

  • http://www.theharteofmarketing.com Beth Harte

    Ah…the infamous non-compete. You know, I’ve heard that they don’t stand up in a court of law if they inhibit someone from getting a job and making a salary after being laid off or fired (at least in PA). Not 100% sure if that’s true because I am a marketer, not a lawyer [and I don't even play one on Twitter. ;-)]. I’d like to know though…

    I think as companies become more savvy to the potential relationships that are built online with prospects/customers they are going to have policies in place that some socially engaged folks won’t like. I think the side effect will be that those companies will lose out on some great talent.

    John, thanks for adding some more insights to this topic and linking to my post…it’s much appreciated!

  • http://philgerbyshak.com Phil Gerbyshak

    Interesting question John. I guess it depends on what you’re building…and what your firm has to say about it. If you’re directly competing with them as a moonlighter, and you’re tweeting on company time, then they may own a right to say the “friends” you made are yours. If it was done on your own time, on your own dime, then maybe not.

    The newfound transparency of new media is both a good and bad thing for employees, as you can see more into the person and see that they’re not happy. At the same time, you’re able to build a powerful personal brand if you’re willing to be open and transparent and add value to others.

    Very interesting to think about!

  • http://mainebusiness.mainetoday.com Carl Natale

    This hits close to home for me. I twitter under the name @MaineBusiness – the name of our publication. It’s mostly a broadcast of tips & advice I find around the Internet. This seems clearly the property of my employer.

    But I created the account of my own initiative. No one else contributes. I gained 700+ followers virally. I know that’s not a lot relatively. But that’s 700 people who respect what I do.

    If I leave the company, that’s 700 connections I created that could help me start a new business. But I know if I’m gone it’s because my position has been eliminated. With it will go any desire to keep the account going by anyone here.

    My ethics tell me to hand over the password if I leave. But those connections could be a real asset. If I start over with an account with a different, non-competing mission, I should be able to create a new following with some of the old connections. But is there a way to take advantage of the @MaineBusiness connections without hurting my employer?

  • http://www.brandstorming.com Jim Durbin

    Non-competes have long been the bane of recruiters, and they are legal in some states but not others (CA is now saying they just don’t matter). Non-solicits are a different matter – and they usually are the bite behind the bark. The non-compete is used to add heft to the danger of losing business.

    This problem is already here, as owners of staffing firms are trying to lay claim to LinkedIn connections, Twitter followers, and blog names. It depends on the contract you signed and how good your lawyer is, but a lot of us are in the position of doing work that legally belongs to our companies, and the courts have not caught up.

    On the other side, LinkedIn Connections can be exported to a external file – Twitter followers can be moved to a new address, and all of these sites have TOS agreements that actually say the person who owns the accountis using it for personal reasons and isn’t allowed to sign away the rights to a company.

    Not to mention that if I say I’m leaving a company and tweet that I’m moving to a new address, or if I’m silent, but someone else tweets that I moved, those followers (the engaged ones that matter) will move with me.

    It’s not an easy question, and it’s not covered in most of your contracts. Unless your company is really on top of things, their IP contracts don’t cover personal contacts on these sites, which means if even if you sign something now, it’s under duress.

    How badly do you want to keep it? Look to recruiters and bloggers who sued their companies to retain their blogs when they left for legal help. And for goodness sakes, make backups of your files.

  • http://www.morningstarcomm.com Clara

    Definitely a gray area in some respects. Consider Betty’s scenario — say the company made her give up her account and a new person took over. I’m not sure that would be effective for the company. Wouldn’t many in the community she built stop following the new person? And wouldn’t they want to know where Betty went so they could keep following her? I do think the hand-off could be done in a way where, if Betty is willing and parting on good terms, bestow some of her credibility on the new person.

  • http://jasonkeath.com jakrose

    pretty thought provoking. but seriously, just try and touch my twitter account and I’m gone.