In Seyfarth’s second installment of its 2014 Trade Secrets Webinar series, Seyfarth attorneys addressed the relationship between trade secrets and social media.
As a conclusion to this well-received webinar, we compiled a list of key takeaway points, which are listed below.
- The Law is on the Rise. 14 states now have laws on the books prohibiting employers from requiring or even asking for access to employees’ or job applicants’ personal social media accounts. Penalties for violations range from nominal administrative fines to much heavier court-imposed judgments, including punitive damages and attorneys’ fees. Many of the laws, however, have broad exceptions and loopholes, including required employer access of “nonpersonal” accounts and on suspected data theft or workplace misconduct, or for bona fide employer network and device monitoring. To learn more, ask us for a free copy of our newly published desktop reference, or give us a call.
- Watch Out for Your Trade Secrets. The new legislation may throw wrenches into employer-employee trade secret theft cases. For example, a disloyal employee copies a confidential employer customer list onto his personal LinkedIn account, thus effectively publishing that list. The employee works in a privacy state, which has an exemption for suspected data theft. The employer hears unsubstantiated gossip about that list copying, but does not investigate based on the flimsy evidence and for fear of violating the privacy law. The employee later resigns, and uses that list for a competitor. Did the former employer waive a trade secrets claim against the employee because it decided not to investigate, even though it could have? Did that decision amount to an unreasonably insufficient effort to protect its trade secrets, under the statutory definitions of trade secrets? In our new desktop reference, we address those questions, and many more.
- Have a Policy. Employers which have offices or employees working in a privacy state should seriously consider implementing a social media usage policy. That policy should describe, among other things, what constitutes a “personal” social media account, what types of information belong to the employer, what types of social media activity is permissible, the instances in which the employer may seek to require or request access, and the potential consequences for employee non-compliance. With our unique expertise, we can help.
Please join us for our next webinar on May 28th, Barbarians at the Gate: Class Action Avoidance and Mitigation for Data Breach