
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 Linkedln.com 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 LinkedIn.com 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.
No comments:
Post a Comment