CWS 3.0: November 13, 2013

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Is Social Media a CW Issue?

Internal staff and contingent workers are all embracing social media — either for work, pleasure or both — to communicate on a wider platform. Chances are, you and/or your internal employees already connect with your contingent workers using social media.

But with social media being such a relatively new phenomenon, employment and other areas of the law have yet to catch up. For example, one area companies might not consider social media having an effect is with regard to non-solicitation agreements. In order to protect their talent and client bases, many companies require departing employees to sign agreements promising not to solicit current workers or customers. However, the rise of social media networks, specifically LinkedIn, complicates this standard practice. The very nature of social media makes enforcing them tricky. Indeed, at this point there is no published court decision that addresses whether LinkedIn violates non-solicitation agreements, according to Erik B. von Zeipel, a partner with Seyfarth Shaw LLP. 

So what should buyers do? First of all, know what’s important to your organization when it comes to social media use and what works with your corporate culture. Recognize that social media is happening anyway, there is little companies can do to exercise control without perhaps unintentionally violating the National Labor Relations Act or state laws. While some social networking situations are on a more professional level (LinkedIn) others are more social in nature (Facebook), there is always a choice.

When a social media issue arises with a contingent worker, tread carefully and evaluate the facts and circumstances as they pertain to violating any existing solicitation agreements or company policies. Further, make sure your staffing providers know of your policies as well as any penalties that exist for non-compliance, advises Tim Szuhaj, an attorney at Becker Meisel LLC. Balancing legal rights of the agreements with the reality that social media is now part of the workplace is an ongoing challenge for many businesses.

Finally, make sure to build specific language into your non-solicitation agreements with staffing companies and their employees that address social media that is realistically enforceable and does not violate existing labor laws. Social media is part of the package, whether the employee is contingent or your very own, so be clear on where your company stands.

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