Smart phones and social: the next litigation playground

A number of excellent articles were published recently that speak to the growing risk both companies and individuals face from their social connections or use of their personal devices for communications such as text messaging. So what’s new?

Your posts on social media can find you guilty of violating non solicitation agreements.

SHRM specifically details new case law related to ones use of their Linkedin profiles on soliciting new employees or customers of your former employer.

Given that this case law only exists in a few states, I think at this point it serves as a good wake up call to anyone contemplating a job change, especially if you are in recruitment or sales.

My advice?

Before you begin to work for a company, make sure you are ok with the restrictive covenants section of your employment agreement. This section should detail your obligations related to confidentiality, IP protection and solicitation (of staff or of customers). Often these sentences are overly broad. It doesn’t hurt to ask for a modification before you start working especially if the restrictive period if very long, such as one year or more.

If you are separating from a company under any circumstances that involve a formal separation agreement, ask for a modification of your non-solicitation restrictions. This is especially important if you are losing your position due to restructuringing and your termination is involuntary; you have a right to work and most employers will grant a revision to reasonably reduce this time period to ensure the termination process goes smoothly.

Think before you post. If you are moving on to a new job don’t be afraid to tell people where you are going. But before you start recruiting former colleagues or pitching your old customers, think about what you put in your bio or in your posts during the restrictive period. This includes Inmails and private messages.

Which brings us to text messages…

Text messages are the new focus of e-discovery

SHRM’s recent article on text messages in litigation points out a number of concerns both from the perspective of the employer and the employee.

My advice?

If you are an employee required to use your own personal device for business:

  1. Don’t connect your personal apple iMessage account, personal emails or personal apps to your work computer. This makes your personal text messages visible to your employer and worse could end up in an ediscovery claim.
  2. Harassment is harassment, don’t ever send your colleague flirtatious text messages or lewd pictures. Think about the time of day you send messages and how their content may be interpreted.
  3. Don’t talk about company trade secrets, sensitive issues likely to be involved in litigation, or other employees over text on your personal device. Do you want your entire device including your personal photos and texts to your spouse being gone through by a lawyer?

Especially don’t do any of the above if you are separating from a company and have a restrictive covenants section.

If you are a business:

  1. Think seriously about your bring your own device (BYOD) policy. Yes, this may reduce an expense to your company for mobile devices and phone plans, but make sure that the risk of a litigation claim is work the reduced expense.
  2. Have a policy regarding handling of company documents and information on personal devices including what happens when the employee is terminated. This should include what your requirements are for preservation of messages (such as text messages) and whether or not use of file sharing sites or Airdrop features are allowed.
  3. If you manage the Ethics or Diversity program, think about updating your training programs to specifically call out use of text messaging, social media or collaboration technologies (like Slack) in your training. Important points including defining sexting, and discussing with your employees the implications of the time of day and content of their messages. If you don’t have processes to monitor or report these, update them now.

As technology changes, sometimes it takes us a little while to stumble through the right policies to use it. But like any change, if you think first “what would my mother think if she read that I wrote that,” then probably you will be ok.


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