Evan Schuman's StorefrontBacktalk

Kravitz could not simply take the @PhoneDog_Noah moniker with him. It would likely violate PhoneDog’s trademarks, in addition to creating substantial confusion about who Kravitz represents after his employment. But could PhoneDog mine the 17,000 followers? Could Noah?

For months after leaving, Kravitz maintained the @PhoneDog_Noah handle (he claims with the blessing of the company). He increased the number of followers to over 22,000. Enter the lawyers. They claim Kravitz’ Twitterverse constitutes a proprietary customer list that he “stole” when he left. They also claimed damages equal to $2.50 per follower per month. What a mess.

So, how can a retailer prevent these problems? As lawyers and auto mechanics say, “You can pay me now, or you can pay me later.” The key here is to manage both employee and customer expectations before the crisis. So, if Mrs. Fields leaves the cookie company, not only does the company retain the trademark, but it also may retain her domain name and quite possibly her Twitter feed, Facebook page and LinkedIn profile. Like so many other things in life, planning is important.

Thus, in addition to having the relevant employee sign a noncompete or nondisclosure agreement, you should define exactly what you mean to prohibit. Can the employee notify (directly or indirectly) clients about his or her change in employment status? Can they post this information on their LinkedIn profile or Twitter feed? Do these activities constitute a violation of the noncompete agreement?

To avoid any ambiguity, any noncompete agreement should expressly state what activities constitute a violation of that agreement. You should also consider having an agreement about not only the use of social media by employees but ownership of social media data, too. This agreement should make it clear that employees are responsible for ensuring confidential information, proprietary information and sensitive business information are not to be shared on social media sites. It should also make it clear that the employer may monitor any communications the employee makes—even those made from home—if those communications are in a public media like a social media site.

Companies also need to consider under what circumstances they intend to “friend” any of their employees’ social media sites like Facebook. Although I would recommend employers do this, there are things employees may say in these social media sites in a semipublic forum that can be a violation of noncompete or nondisclosure agreements.

LinkedIn has the potential of becoming the next contacts database, even though it exists on the cloud and employees don’t “steal” it when they leave the company. Wise retailers should decide in advance who owns this valuable business resource. If they don’t, it’s just up for grabs.

If you disagree with me, I’ll see you in court, buddy. If you agree with me, however, I would love to hear from you.