As employment disputes commonly involve communications between or among employees, management, and customers, it should come as no surprise that social media’s role in workplace disputes has drastically increased in the last year. Indeed, recent decisions from around the country have turned on the application of Twitter, LinkedIn, Facebook, YouTube, and blogging.
Cases have arisen in varied contexts, including post-employment obligations, ownership of handles, walls, and contacts; assessments of “concerted activity” versus insubordinate behavior under the National Labor Relations Act; and privacy and discrimination/hostile work environments claims. This article discusses recent social media cases in the context of post-employment obligations and makes recommendations for what employers can do to better protect confidential information and trade secrets.
Post-Employment Obligations
In the last year, there has been one reported case involving Twitter and three cases involving LinkedIn and, to a lesser extent, Facebook.
In PhoneDog v. Kravitz, an employer sued a former employee claiming that its17,000 Twitter followers remained company property after the employment relationship ended. PhoneDog had hired Noah Kravitz to write product reviews and post and link blog entries in the hopes of driving traffic to the PhoneDog website, thereby generating advertising revenues.
PhoneDog provided Kravitz with a password and the Twitter handle “@PhoneDog_Noah.” Over the course of about four years, @PhoneDog_Noah developed approximately 17,000 followers. In October of 2010, Kravitz left PhoneDog, and PhoneDog asked that he hand over control of the account. Mr. Kravitz refused, changed the Twitter handle to “@noahkravitz” and continued using the account.
PhoneDog sued Kravitz claiming (i) misappropriation of trade secrets; (ii) intentional and negligent interference with prospective economic advantage; and (iii) conversion. Kravitz moved to dismiss, asserting that the identity of the Twitter followers and the account’s password were not “trade secrets” because the followers are publicly known and the password does not generate any “substantial business advantage.” PhoneDog countered that followers are akin to customers because customer traffic on PhoneDog’s website generates advertising revenue. Furthermore, PhoneDog argued that Kravitz “misappropriated” the followers by changing the handle and continuing to tweet.
The court denied Kravitz’s motion to dismiss the misappropriation claim because PhoneDog had sufficiently pled the existence of a trade secret, and also sufficiently alleged that Kravitz’s refusal to turn over the account constituted misappropriation of that trade secret. This does not mean that the Twitter followers will ultimately be deemed a trade secret—that determination will be made at a later stage of the litigation.
The court initially dismissed PhoneDog’s intentional and negligent interference claims because it was unclear with what economic relationship Kravitz interfered. PhoneDog then claimed interference with Twitter followers, advertisers, and media outlets. The court accepted the argument concerning interference with advertisers because PhoneDog presented evidence that advertisers pay based on page views generated from users visiting PhoneDog’s website. Notably, the court did not address whether Kravitz interfered with PhoneDog’s alleged relationships with the Twitter followers.
In Eagle v. Morgan, et al., the founder and subsequent purchasers of a company sued each other over ownership and control of the founder’s LinkedIn account and the “connections” associated with that account. After the company terminated the founder (Dr. Eagle) and other senior executives, the company, which had Dr. Eagle’s LinkedIn account password, changed Dr. Eagle’s profile to display the photo and profile of Dr. Eagle’s replacement. Dr. Eagle sued claiming, among other things, invasion of privacy and tortuous interference. The company asserted counterclaims of, among other things, misappropriation of the LinkedIn account and unfair competition.
Dr. Eagle moved to dismiss the company’s counterclaims. As to the misappropriation claim, the company maintained that it was the rightful owner of the LinkedIn account connections (not the account itself) because company personnel developed, maintained, and furthered the LinkedIn account for the company’s sole benefit and use.
The court rejected the misappropriation of a trade secret claim because the LinkedIn account connections were publicly available, both on the LinkedIn profile of the connections and on the company’s website. However, the court ruled that the company may be able to prove misappropriation of an idea because company personnel allegedly developed and maintained a connection for the company’s sole benefit. And as misappropriation is a form of unfair competition, the court also allowed that claim to proceed.
In TEKsystems, Inc. v. Hammernick, the employer recruiting firm accused former employees of using their knowledge of the company’s customer lists to contact customers via LinkedIn, in violation of the employee’s restrictive covenants. While the TEKsystems case settled without judicial resolution, the permanent injunction and settlement restricted the defendant and other former employees from contacting a list of former customers, clients, candidates, and employees.
In another executive search case, Sasqua v. Courtney, the court was asked to consider the issue from a different direction. Instead of the defendant being accused of using LinkedIn as an offensive tool to contact former customers, the defendant used LinkedIn as a shield to argue that information on the former employer’s customer list was publicly available—and therefore not a trade secret. The court agreed and rejected trade secret protection because the employer’s list of clients and candidates was publicly available through sites like LinkedIn, Facebook, and Bloomberg. The court also took note of the employer’s failure to impose restrictive covenants. The court commented that, at one time, the employer’s database may have been protectable, but “the proliferation of information made available through full-blown use of the internet and the powerful tools it provide[s]” has placed the protection of similar information at risk.
