All posts by Navigant Law Group, LLC

Illinois Further Restricts Employers Use of Criminal Background Checks

On March 23, 2021, Illinois Governor Pritzker signed into law Senate Bill 1480, which amends both the Illinois Human Rights Act and the Illinois Equal Pay Act and requires employers to report EEO-1 and pay data to the Illinois Secretary of State.

In this article we will focus on the amendment’s impact on the use of criminal background checks by employers in the hiring process.

Essentially, the amendment provides that an employer may only consider an individual’s criminal conviction history if there is a substantial relationship between the criminal history and the position sought or held, or if the employer can show that the individual’s employment raises an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

You can see the full text of the Amendment here. But let’s break it down for you:

CONVICTION RECORDS

The amendment sets out a definition of “Conviction Record” as:

“information indicating that a person has been convicted of a felony, misdemeanor or other criminal offense, placed on probation, fined, imprisoned, or paroled pursuant to any law enforcement or military authority.”

 

USING CONVICTION RECORDS IN EMPLOYMENT DECISIONS

Under the Amendment, an employer (which includes employment agencies and labor organizations) cannot use a conviction record as a basis to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment – with certain limited exceptions.

This means the restriction on use goes beyond simply hiring practices.  The restriction applies throughout the employee’s employment, so the use of criminal records is restricted for all decisions made with respect to the employee, including anything that could be considered an adverse action or an element that disqualifies the employee for a promotion or transfer.

 

WHEN CAN CRIMINAL RECORDS BE USED

Employers use of criminal records is limited to situations where:

  • use of criminal records is specifically authorized by law;
  • there is a substantial relationship between the previous criminal offense and the employment position.
  • the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

The amendment clarifies what is meant by “a substantial relationship” between the offence and the position (see the second bullet above) by encouraging employers to consider whether the position offers the opportunity for the same or a similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position.

As to the phrase “unreasonable risk” (in the third bullet above) this is not defined, putting a burden on the employer to establish that a risk exists that no reasonable employer in similar circumstances should incur.

 

FACTORS TO CONSIDER

Employers that want to use criminal records in their decisions have a lot to think about.  The amendment lays out factors Employers need to consider in determining whether the criminal record can be used:

  • the length of time since the conviction;
  • the number of convictions that appear on the conviction record;
  • the nature and severity of the conviction and its relationship to the safety and security of others;
  • the facts or circumstances surrounding the conviction;
  • the age of the employee at the time of the conviction; and
  • evidence of rehabilitation efforts.

 

IF THE CRIMINAL RECORD IS A FACTOR, THEN WHAT?

Employers that determine the conviction record disqualifies the applicant or employee from the position must notify the employee of this decision in writing.  This is called the “Preliminary Decision Notice” and it must include:

  • notice of the disqualifying conviction or convictions that are the basis for the preliminary decision and the employer’s reasoning for the disqualification;
  • a copy of the conviction history report, if any; and
  • an explanation of the employee’s right to respond to the notice before the decision becomes final. The explanation needs to inform the employee that the response may include, but is not limited to, submission of evidence challenging the accuracy of the conviction record that is the basis for the disqualification, or evidence in mitigation, such as rehabilitation.

This determination is considered “preliminary” – not final – because the applicant/employee has at least 5 business days to respond to the notification before the employer can make a final decision. The employer has to consider any information submitted by the applicant/employee before making a final decision. If an employer makes the final decision solely or in part because of the conviction record, the employer must issue the Final Determination Notice which has to state:

  • notice of the disqualifying conviction or convictions that are the basis for the final decision and the employer’s reasoning for the disqualification;
  • any existing procedure the employer has for the employee to challenge the decision or request reconsideration; and
  • the right to file a charge with the Department.

BACKGROUND CHECKS AND OTHER LAWS TO CONSIDER

The new amendment to the Illinois Human Rights Act is just the latest in a long line of legal restrictions on employer’s use of background checks, including:

  • In 2010, the Illinois Employee Credit Privacy Act “IECPAwas enacted to prohibit employers from inquiring about or using a current or prospective employee’s credit history as a basis for employment, discharge, or compensation, with limited exceptions.
  • The Illinois Job Opportunities for Qualified Applicants Act – commonly referred to as the “ban the box law” went into effect on January 1, 2015 and prohibits private employers with 15 or more employees, from asking about, requiring disclosure of, or considering an applicant’s criminal history, until the employer/employment agency has decided that the applicant is qualified for the job and has notified the applicant of their selection for an interview or, if no interview, until a conditional job offer has been made.
  • The Illinois Health Care Worker Background Check Act establishes a number of “disqualifying offenses” that requires health care and long-term care facility employers to terminate employees found to have certain criminal convictions unless there is a waiver granted by Illinois Department of Public Health.
  • Of course there are also a number of federal laws that need to be taken into account, including the Fair Credit Reporting Act.

 

NEXT STEPS FOR EMPLOYERS RELYING ON CRIMINAL BACKGROUND CHECKS

To the extent Illinois employers have policies or practices in place allowing the use of background checks in hiring or criminal records in making employment decisions, those policies should be reviewed and revised to comply with the amended IHRA.  Human resource professionals, managers and other employees with supervisory authority should receive training on this new amendment and the company’s updated policy on the use of criminal records.

 

Should you have any questions about background checks and using criminal records in your employment decisions or you would like to schedule an initial consultation, please contact Navigant Law Group, LLC at (847) 253-8800 or email us at info@navigantlaw.com.

At Navigant Law Group we know the ropes of the legal system. Business services include: Contract Law, Employment Law, Intellectual Property, WBE / MBE / VBE / LGBT / DBE certification, Commercial Real Estate, and other general Business Law services. Individual services include Estate Planning, Wills and Trusts, Administration, Probate, and Guardianship.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice.

Workplace Vaccination Programs and Updated Inspection Guidelines

New updates from the CDC and OSHA.

The Center for Disease Control (CDC) and the Occupational Safety and Health Administration (OSHA) have each recently issued updated guidance related to the ongoing COVID-19 pandemic.

Workplace Vaccination Programs

The Center for Disease Control recently updated its recommendations on Workplace Vaccination Programs.  The full CDC page can be found here, but below is a summary of some of the items the CDC recommends for the workplace:

  • Offer flexible, non-punitive sick leave options (e.g., paid sick leave) for employees with signs and symptoms after vaccination.
  • Consider staggering employee vaccination to avoid worker shortages due to vaccine side effects. For employees who receive a 2-dose vaccine, staggering may be more important for the second dose, after which side effects are more frequent.
  • After employees are fully vaccinated, they may be able to start doing some things they had stopped doing because of the pandemic. However, in work settings, even after employees receive a COVID-19 vaccine, they may still need to take steps to protect themselves and others in many situations. Employers should continue to follow the Guidance for Businesses and Employers Responding to COVID-19. This includes wearing well-fitting masks, making sure employees are staying at least 6 feet (about 2 arm lengths) apart from each other, avoiding crowds and poorly ventilated spaces, and washing hands often. The more contact the employees have with one another the more likely they are to be exposed to COVID-19. If other workplace health and safety measures, such as engineering controls (e.g., barrier protections), were installed, they need to remain in place.

 

OSHA Audit Procedures

Not to be outdone, the Occupational Safety and Health Administration (OSHA) has provided new instructions and guidance to Area Offices and Compliance Safety and Health Officers (CSHOs) for handling COVID-19-related complaints, referrals, and severe illness reports.

Pursuant to the March 12, 2021, National Emphasis Program (NEP) for COVID-19, DIR 2021-01 (CPL-03), OSHA will prioritize COVID-19-related inspections involving deaths or multiple hospitalizations due to occupational exposures to COVID-19.  NEPs are temporary programs that focus OSHA’s resources on particular hazards and designated high-hazard industries. This NEP advises that OSHA will use targeted inspections, outreach, and compliance assistance to identify and reduce or eliminate COVID-19 exposures in the workplace. In addition, this NEP will include the added focus of ensuring that workers are protected from retaliation.

OSHA has also issued an Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) to prioritize the use of on-site workplace inspections where practical, or a combination of on-site and remote methods.

Since the start of the pandemic, OSHA has handled most enforcement work remotely, without in-person inspections. Under the NEP, more inspections will involve on-site visits.

The following summarizes OSHA’s updated strategy:

  • OSHA will perform on-site workplace inspections where practical.
  • OSHA will at times use phone and video conferencing, in lieu of face-to-face employee interviews, to reduce potential exposures to CSHOs. In instances where it is necessary and safe to do so, in-person interviews shall be conducted.
  • OSHA will also minimize in-person meetings with employers and encourage employers to provide documents and other data electronically to CSHOs.
  • In cases where on-site inspections cannot safely be performed (e.g., if the only available CSHO has reported a medical contraindication), the AD will approve remote-only inspections that may be conducted safely.

OSHA has also provided a graphic showing important dates of the updated NEP.

The updated NEP reflects the concerns raised in the February 22, 2021 Office of Inspector General’s report on OSHA activity during the pandemic  This report criticized OSHA’s handling of complaints during the pandemic, saying:

“Since the start of the pandemic, OSHA has received a sudden influx of complaints, and as a means of reducing person-to-person contact, has reduced the number of its inspections, particularly onsite inspections. Compared to a similar period in 2019, OSHA received 15 percent more complaints in 2020, but performed 50 percent fewer inspections. As a result, there is an increased risk that OSHA is not providing the level of protection that workers need at various job sites. During the pandemic, OSHA issued 295 violations for 176 COVID-19 related inspections, while 1,679 violations for 756 COVID-19 related inspections were issued under State Plans.”

According to the American Health Law Association, as of January 14, 2021, OSHA had issued hundreds of citations resulting from COVID-19 inspections, with total initial penalties of $4,034,288. As of March 14, 2021, OSHA had received a total of 16,192 COVID-19 related health and safety complaints and referrals at the federal level, and opened 1,816 inspections. The majority of these inspections were triggered by employee complaints. Separately, OSHA has received 5,035 whistleblower complaints related to COVID-19.

American Rescue Plan Act (ARPA)

The new American Rescue Plan Act (ARPA) will also assist OSHA’s ability to increasing its on-site inspection abilities.  The ARPA provides up to $200 million in funds for the U.S. Department of Labor, specifically stating “not less than $100,000,000 shall be for the Occupational Safety and Health Administration”. Of the $100,000,000 “not less than $5,000,000 shall be for enforcement activities related to COVID–19 at high-risk workplaces including health care, meat and poultry processing facilities, agricultural workplaces and correctional facilities.” An additional $12,500,000 is earmarked for the Office of Inspector General (The U.S. Department of Labor (DOL) department that conducts audits to review the effectiveness of all DOL programs and operations) with the remaining money not specifically allocated and left to the discretion of the DOL for its use.

Should you have any questions about the Center for Disease Control’s updated guidance, Occupational Safety and Health Administration’s workplace audits, the updated American Rescue Plan Act of 2021, how the items highlighted in this blog affect your business or you would like to schedule an initial consultation, please contact Navigant Law Group, LLC at (847) 253-8800 or email us at info@navigantlaw.com.

At Navigant Law Group we know the ropes of the legal system. Business services include: Contract Law, Employment Law, Intellectual Property, WBE / MBE / VBE / LGBT / DBE certification, Commercial Real Estate, and other general Business Law services. Individual services include Estate Planning, Wills and Trusts, Administration, Probate, and Guardianship.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice.

 

HERE WE GO AGAIN…

The new American Rescue Plan Act of 2021 and its impact on employers

On March 11, 2021 President Biden signed the American Rescue Plan Act of 2021.  Most of the news reports have focused on the $1,400 stimulus checks that many Americans will receive or the extension of the $300 federal unemployment benefit through September 6, 2021, but for employers the primary question has been:  Do I still have to provide paid sick leave?

 

Families First Coronavirus Response Act (commonly called the “FFCRA”) put into place COVID-related paid leave requirements with which most employers are now very familiar. The FFCRA largely expired on December 31, 2020, with mandate to provide paid leave expiring, but the ability to use tax credits extending through March 31, 2021.  For more information on what happened between December 31, 2020 and March 31, 2021 see our article here.

 

Now we have The new American Rescue Plan Act of 2021 (or the “ARPA”).  What does that mean for your business?

 

First, understand that paid leave remains optional, so business owners need to decide whether to provide employees with the paid leave provided under the ARPA.  To help with that decision, here is a summary of key changes to the FFCRA included in the ARPA:

 

  • Tax credits. Businesses can continue to claim tax credits for providing qualified ARPA leave through September 30, 2021.

 

  • New Paid-Sick Leave (EPSL): The FFCRA provided 10 days of paid sick leave that could be used up to December 31, 2020, or if the employer elected to extend into 2021, it could be used up to March 31, 2021. The extension allowed employees to roll any unused paid sick days over into 2021.   The ARPA will create a new bank of paid sick leave that employers can claim tax credits for starting on April 1, 2021 and ending September 30, 2021.

 

  • New Reasons for Paid Sick Leave (EPSL): Originally under FFCRA, employees could take EPSL for six reasons, the ARPA has added the following new reasons:
    • the employee is seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID–19 and such employee has been exposed to COVID–19,
    • the employee’s employer has requested such test or diagnosis,
    • the employee is obtaining immunization (vaccination) related to COVID–19, or
    • recovering from any injury, disability, illness, or condition related to such immunization.

 

  • Expansion of Expanded FMLA (EFMLA): Previously EFMLA was only available – and tax credits could be claimed – if an employee was unable to work or telework due to the COVID-related unavailability of a child’s school or childcare. Under ARPA, the family leave payroll tax credits may now be claimed for all of the qualifying uses of EPSL listed above. Moreover, FFCRA originally provided that the first two weeks of EFMLA were unpaid, but the ARPA has deleted that unpaid two-week provision, meaning that the entire (up to) twelve weeks of EFMLA is paid (and the tax credit has been increased to $12,000).

 

  • New Non-Discrimination Provision: Businesses that elect to provide ARPA leave must follow its nondiscrimination rules which say that tax credits are not available to employers who discriminate:
    • in favor of highly compensated employees,
    • in favor of full-time employees, or
    • on the basis of an employee’s tenure with the company.

 

To summarize:

  • Providing paid leave is optional.
  • If you opt to provide paid leave, the available time employees can take off for COVID related reasons is now up to 14 weeks of paid leave.
  • The qualifying reasons for leave now includes vaccination time and time to recover from vaccinations.
  • Leave must be made available to all employees – regardless of salary level, hours worked per week or seniority.

 

What now?

 

Once you’ve made your decision whether to provide paid leave under ARPA, what are some of your first steps?

 

  • Providing Leave?
  • Update your posters to include the ARPA.
  • Update your COVID leave request forms and policies to include the new leave terms.
  • Communicate your new policies to your employees.

 

  • Not Providing Leave?
  • Make sure you have removed your FFCRA Posters from all notice locations before April 1st.
  • Remove your FFCRA policies from your handbook, intranet, or any location where you include employee policies for employees to review.
  • Communicate your decision with your employees.

 

That’s just a start, each business will have to determine what other steps are necessary or are best for their employees and operations.  Talk with your management team and supervisors to determine what is best for your business.

 

What else does the ARPA do?

 

The American Rescue Plan Act of 2021 addresses a number of other issues, including providing funding for:

 

  • agriculture and nutrition programs, including the Supplemental Nutrition Assistance Program (SNAP, formerly known as the food stamp program);
  • schools and institutions of higher education;
  • childcare and programs for older Americans and their families;
  • COVID-19 vaccinations, testing, treatment, and prevention;
  • mental health and substance-use disorder services;
  • emergency rental assistance, homeowner assistance, and other housing programs;
  • payments to state, local, tribal, and territorial governments for economic relief;
  • multiemployer pension plans;
  • small business assistance, including specific programs for restaurants and live venues;
  • programs for health care workers, transportation workers, federal employees, veterans, and other targeted populations;
  • international and humanitarian responses;
  • tribal government services;
  • scientific research and development;
  • state, territorial, and tribal capital projects that enable work, education, and health monitoring in response to COVID-19; and
  • health care providers in rural areas.

 

The bill also includes provisions that:

  • extend unemployment benefits and related services;
  • make up to $10,200 of 2020 unemployment compensation tax-free;
  • make student loan forgiveness tax-free through 2025;
  • provide a maximum recovery rebate of $1,400 per eligible individual;
  • expand and otherwise modify certain tax credits, including the child tax credit and the earned income tax credit;
  • provide premium assistance for certain health insurance coverage; and
  • require coverage, without cost-sharing, of COVID-19 vaccines and treatment under Medicaid and the Children’s Health Insurance Program (CHIP).

 

Should you have any questions about the American Rescue Plan Act of 2021 and paid leave policies for your business or would like to schedule an initial consultation, please contact Navigant Law Group, LLC at (847) 253-8800 or email us at info@navigantlaw.com.

 

At Navigant Law Group we know the ropes of the legal system. Business services include: Contract Law, Employment Law, Intellectual Property, WBE / MBE / VBE / LGBT / DBE certification, Commercial Real Estate, and other general Business Law services. Individual services include Estate Planning, Wills and Trusts, Administration, Probate, and Guardianship.

 

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice.

 

Social Media and Your Business –Steps to Take to Document the Transfer of a Social Media Account

We have already discussed what a social media account is, the various parts of it, and the steps that can be taken to secure ownership of a social media account that a business creates in the prior articles in this series. Now it is time to talk about the steps that should be taken and the agreements that should be drafted to document the transfer of a social media account.

Every single time that ownership of a social media account is transferred from one party to another, a written agreement reflecting the transfer needs to be created and signed by all of the involved parties. Simply having a written agreement will help avoid arguments and resolve disputes without requiring the involvement of lawyers or judges.

As stated in the articles that proceed this, a social media account is not considered to be a single standalone item but a collection of items. While the aspects of a specific social media account can vary, they often include: the account name, the username or logon credentials, the ability to access to the account, the content posted to the account, and the followers of the account.

When Transferring Social Media Accounts, Earlier = Better

There are two main points in time where an agreement to transfer social media is entered into: (i) before the social media account is created; and (ii) after the social media account is created.

If the social media account is being created as part of someone’s job, it is recommended that an agreement be entered into prior to the employee being hired; if that is not possible, then prior to the social account being created. There is also a third point in time that these agreements are entered into and that is after a dispute over the account; these agreements are usually the result of extended negotiations (or litigation) and tend to be longer and more costly. Hopefully by reading this article, you can enter into the necessary agreements now and avoid any disputes in the future.

Language regarding the ownership of a social media account can be found in offer letters and employment agreement, confidentiality, and non-disclosure agreements, as well as in separate specifically drafted social media ownership agreements. It really does not matter the title of the agreement as long as it clearly explains identifies the items being transferred, explains the details of the transfer, and is signed by the relevant parties.

Identify Involved Parties and Items

Now that you know that your business needs an agreement, here are some of the various items it needs to talk about. First, it is very important that you properly identify all of the involved parties (the person transferring the social media account, the person transferring the social media account, and the name and location of the social media account), the items being transferred, and the items not being transferred.  Numerous issues have arisen due to people failing to properly identify the people and the social media account(s) involved.

It is equally important to be very clear as to what is being transferred and what is not. It is recommended that one go into too much detail over what is being transferred rather than going into too little; failing to go into enough detail may result in your business later relying on a court to make the decision as to what was supposed to be included.

If less than the entire social media account is transferred, language needs to be included in the agreement regarding how the various parts of the account (e.g., profile, access information, content, and followers) and the items posted on it (e.g., videos and photos) are to be separated out and transferred. Certain items can be easily separated out or removed from the social media account (e.g., content) while other items cannot be transferred at all and are attached to the account (e.g., followers).

Outline All Obligations

The agreement should also clearly indicate what each of the parties are required to do related to the transfer of the social media account (and afterwards). Unfortunately, signing the agreement does not make the social media account instantly transfer. Most social media sites require that you go through a process to transfer the social media account; it may simply be changing the email address (or control of such email address) associated with the account or it may be more complex. We recommend including langauge within the agreement that requires the person transferring the account to provide assistances in the event that there are any issues transferring the social media account and imposes penalties if they fail to provide the required assistance.

Social Media Experience Wanted

It is important that someone familiar with the type of social media account being transferred be involved in the drafting of the transfer agreement. Having someone familiar with the type of social media account and its various aspects (e.g. how the account works) will help avoid any items being incorrectly handled or forgotten.

Past social media disputes have shown that simply obtaining the logon credentials for a social media account is not sufficient to show ownership; when possible, the party acquiring the social media account should try to obtain the original email address associated with the social media account. If this is not possible, language should be added to the agreement requiring the seller to forward any emails received related to such social media account and to provide assistance with changing the email address associated with the social media account.

Employees Are Not Excluded

If the social media account is created as part of someone’s job, it is important to remember that the work-for-hire doctrine only applies to copyrightable items. As such, it is recommended that employers take the extra step of securing ownership of all the intellectual property created by its employees, whether such items are posted on the social media account or not. This can be accomplished by including langauge in the social media transfer agreement confirming that the employees’ work product is a work made for hire to the extent the work-made-for-hire doctrine applies and including separate intellectual property assignment provisions to cover any work product that is not subject to the doctrine.

While the items above are not an exhaustive list of those that should be included, they reflect the most important items needed to property effectuate a transfer of a social media account.

lease read the other articles in this series available at: Who Owns Your Business’ Social Media Accounts?, When to Restrict Access to Your Businesses’ Social Media Accounts, and How to Secure Ownership of your Businesses’ Social Media Accounts.

Should you have any questions about the process of restricting access to your business’ social media accounts, securing ownership of your business’ social media accounts, or how to properly transfer (and document the transfer of) a social media account, or would like to schedule a free initial consultation, please contact Navigant Law Group, LLC at (847) 253-8800 or contact us online.

Navigant Law Group, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, Litigation, and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, and Guardianship.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice.

Social Media and Your Business – How to Secure Ownership of your Businesses’ Social Media Accounts

Are you sure that the social media accounts being used by your business are actually owned by your business? As business owners are becoming increasingly reliant on social media as means of identifying and interacting with their customers, the idea that a social media account (and its followers) used by the business can easily not belong to the business is a scary thought. The question of ownership is not a simple one; merely saying that you own a social media account does not mean much to a judge. This article will discuss several steps that can be taken to help secure and demonstrate ownership of the social media accounts created by (or for) your business.

Enter into Agreements Regarding Account Ownership

 

The easiest way to secure ownership of a social media account is to enter into a written agreement at the very beginning of the relationship (prior to the creation of the social media account or the hiring of the individual) which outlines ownership of the social media account (or accounts) at issue and all the various components (profiles, access, content, followers, etc.) of the account (or accounts).

This type of agreement should be used whether the individual interacting with the social media account is an employee or an independent contractor/third-party vendor.

In addition to when a social media account is created, an agreement regarding ownership can be entered into at any time. More information regarding the process of transferring ownership of a social media account can be found in the next article in this series. LINK XXX.

If the social media account has already been created, content uploaded, and now an individual or vendor is refusing to acknowledge that they do not own the account, do not lose hope, the courts consider several factors when determining ownership.  It is also useful to keep these factors in mind when creating a new social media account or while using current accounts.

Factors Considered by The Courts in Determining Ownership of Social Media Accounts

While this matter has not been fully litigated, and is considered to be unsettled in several areas, the courts which have considered the issue of social media account ownership have generally considered the following factors, among others, to determine whether a business or an individual should be considered the owner or in of control a social media account:

  • Account Creation. The courts have considered who created the account or who directed that the account be created when determining ownership. In those situations where the business created the account or tasked an individual with creating the account, the courts have considered this to weigh in favor of the business.

 

  • Account Credentials. Not surprisingly the courts will look to the username or other name associated with the account (the name used when interacting on the account) to aid their decision as to ownership. If the account’s name includes the individual’s personal name, even in conjunction with the business’ name, the court will consider such to weigh in the individuals’ favor based on the theory that the individuals’ personality has given the social media account part of (or all of) its’ value. To avoid confusion over ownership, busines owners should refrain from using an employee’s name (or any portion of) as part of the businesses’ social media account’s username.

 

  • Type of Account. The type of social media account at issue will often be considered by the court. Those accounts which provide the account holder with greater information about its followers (e.g., provide follower’s e-mail addresses or contact information) lend support to the argument that having access to the account (and the related information) is critical to a businesses’ continued marketing efforts and weigh in favor of the business gaining ownership of the account (or at least ownership of the followers and their information).

 

  • Account Usage/Purpose. As discussed above, the courts will look to see if the account was strictly business use or if it was also used for personal matters. If the court finds that an individual used the account to discuss personal or other non-business-related topics, this will weight in favor of the individual. On the flip side, if the court finds that the account was used solely for business-related items, this will weight in favor of the business.

 

  • Related Agreements. If an agreement exists related to the ownership or creation of the account, the courts will consider such when making their decision. However, certain courts have decided in favor of the individual in those situations where no agreement existed (the courts have held that the absence of an agreement weighted in the individual’s favor). Based on such, it is recommended that agreements addressing confidentiality, work product, and account ownership be entered into with all employees and independent contractors.

 

  • Involved Industry. While not an obvious consideration, the courts have considered the type of industry involved when determining ownership of a social media account. If the business at issue is involved in an industry which is driven by the use and possession of secret information, as opposed to an industry driven by customer service or company size, the business can make a stronger argument that the information contained within the social media account belongs to the business and not to the individual.

 

  • Content Creation. Similar to account creation, the courts will look at who created the content or directed that it be created. Those that considered the issue of content found that personal use (or non-business-related use) of a social media account weighted in favor of the individual owning the account. On the flip side, when the court found that the social media account was used solely for business-r
    elated items, such was weighted in favor of the business. To eliminate any potential disagreements over ownership, personal posts (or other items) should be prohibited; only business-related posts (or other items) should be allowed.

 

Content Counts- Control It As Much As Possible

To prevent items (inappropriate or not) being posted unknowingly on any of a businesses’ social media accounts, controls, such as policies and procedures, should be established regarding the type and substance of the items posted to each social media account used by the business and should clearly indicate who has authority to post to the account. Copies of these policies should be distributed to everyone who has access to the account, and it is recommended that everyone who receives a copy be required to acknowledge (in writing) that they received such and agreed to abide by its terms.

While it may be simplest to prohibit the posting of business-related content on personal social media accounts, certain businesses may wish to allow employees to use their personal social medial accounts to promote the business or its products. If a business chooses to allow such behavior, it is recommended that a clear written policy be established regarding the posting of business-related content on personal social media accounts and that such policy be communicated on a regular basis to all employees and independent contractors.

In some situations, based on the extent that the personal social media account is used on behalf of the business, businesses owners may wish to request that employees and independent contracts agree (in writing) to provide access to, or transfer ownership and control of, such personal social media account to the business, when asked or at termination.

Now that you are familiar with the items considered by the court when determining ownership of a social media account and the steps that can be taken to secure ownership of your business’ social media accounts, you are ready to move on to the process of transferring ownership of existing social media accounts.

Please read the other articles in this series available at: Who Owns Your Business’ Social Media Accounts?, When to Restrict Access to Your Businesses’ Social Media Accounts, and Steps to Take to Document the Transfer of a Social Media Account.

Should you have any questions about the process of restricting access to your business’ social media accounts, securing ownership of your business’ social media accounts, or how to properly transfer (and document the transfer of) a social media account, or would like to schedule a free initial consultation, please contact Navigant Law Group, LLC at (847) 253-8800 or contact us online.

Navigant Law Group, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, Litigation, and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, and Guardianship.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice.