Employers routinely execute confidential information agreements with key employees. These agreements prohibit the employee from using or otherwise disclosing the employer’s confidential and proprietary business information during and after employment. In many situations, however, these agreements may not adequately protect the employer’s social media assets.

For example, a company’s head of marketing is tasked with establishing Facebook and LinkedIn accounts. Customers or other valuable business contacts may be given access to these accounts, and the employee maintains passwords and membership lists. If the employee resigns to join a competitor, can the employer require him or her to provide passwords or membership lists for these online accounts?

Traditional employee confidential information agreements may not suffice for this purpose. Departing employees may be prohibited from disclosing proprietary information, but the usual agreement does not contain requirements that the employee act affirmatively to transition social media accounts. He or she may be required to return documents or computers in his or her possession, but does this also include access to website information owned and operated by another company? The terms and conditions of use provided by the hosting website may complicate this analysis by undercutting the employer’s claims to ownership of information posted on its site.

Employees vested with these responsibilities should sign agreements that cover social media contingencies. The confidential information agreement can be modified to confirm that the employer and not the employee holds all rights to such information. It should affirmatively require that the employee, upon departure from employment, transfer all passwords and account information, and agree not to make use of such social media information for any other purpose.

As technology changes, employers need to review their existing intellectual property protections, and take steps to ensure that new forms of confidential and proprietary business information are protected from misappropriation and unauthorized use.