Wednesday, April 3, 2013

Is Your Handbook Disclaimer Watering Down Your Technology and Social Media Policy?

Later this month, I’ll be giving a presentation on employee handbooks.  This has me thinking about what types of policies should be included in a handbook and which items might be better addressed separately and outside of the handbook.  In considering technology and social media policies in particular, I’ve concluded that it may be best to maintain these policies as stand-alone policies outside of the employee handbook and, in some cases, to incorporate technology and social media requirements into individual employment agreements.

One key reason for considering a stand-alone technology policy or an employment agreement is that, rarely, can you have your cake and eat it too.  Most well-drafted employee handbooks contain broad contract disclaimers stating that the handbook’s contents are not a contract.  A contract disclaimer serves important purposes, helping an employer to preserve the at-will employment status of employees and to minimize the risk of a breach of contract claim if the employer fails to follow a handbook policy.  An employer that does not want to be legally bound by its handbook may, however, be hard pressed to convince a court that a current or former employee should be held to a different standard.  While an employer may be able to discipline or fire an employee for not complying with a lawful technology policy, it is less clear whether, in the face of a contract disclaimer, the policy could be legally enforced against a current or former employee in court. 
For example, if a departing employee refused to comply with policy language requiring the employee to turn over a personally-owned smart phone or other device so that business data could be wiped from the device, a contract disclaimer might make it difficult for the employer to obtain relief under the policy in a legal action.  An employer may have other options or legal remedies apart from policy enforcement, such as the capacity to remotely wipe data from a mobile device or legal rights under statutory or common law.  An employer could, however, also be better positioned to legally enforce its technology and social media policy in court by using one of the following options:
·        Narrowed Contract Disclaimer:  An employer that feels strongly about including its technology and social media policy in its employee handbook could draft the contract disclaimer in the handbook to state that it does not apply to the technology and social media policy.  If the employer uses this approach, however, it should consider whether other policies in the handbook also need to be expressly carved out from the handbook’s contract disclaimer.  In addition, an employer may want to revise any handbook receipt form that an employee signs to specifically reference the employee’s agreement to comply with the company’s technology and social media policy.

·       Stand Alone Technology and Social Media Policy:  Another option is to issue a stand-alone technology and social media policy that is separate from the employer’s handbook.  An advantage of this approach is that employees are more likely to be aware of, read, and understand a technology and social media policy if they receive it separately from other handbook policies.  The stand-alone policy could contain language stating that the policy does not alter an employee’s at-will employment status, without including a broader contract disclaimer.  An employer should also be better positioned to enforce its technology and social media policy in court if the policy includes a policy-specific receipt form to be signed by an employee and through which the employee acknowledges receipt of the policy, consents to the terms of the policy, and agrees that, as a condition of continued employment, the employee is obligated, both during and after employment ends, to comply with the policy.

·       Employment Agreement:  Finally, an employer might consider incorporating the requirements of its technology and social media policy into an individual employment agreement with an employee.  If an employer is already entering into a confidentiality, invention assignment, or non-compete agreement with an employee, the employer could add a provision to the contract providing that the employee will comply with the company’s technology and social media policies, as amended from time to time.  This approach allows an employer, if needed, to present the employee’s contractual obligations to a court in the form of a traditional, formal contract.

In addition, there are a variety of technology-related matters that might be best addressed in an individual employment contract.  For example, if an employee has non-solicitation or non-compete obligations, the employer might consult with legal counsel to determine whether it may lawfully require a departing employee to delete any work-related or other online contacts from his or her online social media accounts and, if so, address this in the contract.  The employer may also want to include language in the agreement’s non-compete section providing that the employee will not use or other on-line social networking sites to violate the employee’s non-compete obligations.  In addition, if an employee will be involved in blogging, tweeting, or other on-line activity on behalf of the employer, the contract should make clear that the employer will own any work-related social media accounts, user names, and content created by the employee in the course of employment.

Whichever of the above approaches is used, the employer should also be mindful of state law requirements that must be satisfied to have a legally binding contract with an employee.  For example, in some states, continued employment alone may not be sufficient legal consideration for certain types of contracts with a current employee.  Companies should work with their legal counsel to customize and adopt the best approach for their business and to ensure that any employee contractual obligations are supported by adequate legal consideration.

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