From the Corner Office: Rob Sumner, CAE, Esq.
This month’s Corner Office Spotlight shines on Robert Sumner, CAE, Esq., who specializes in business and employment law. An association lawyer for nearly 20 years, Sumner has more than 24 years of experience in association management and has been an active member of the Georgia Society of Association Executives (GSAE) since 1981.
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Association Adviser: Rob, we understand you were an association executive before becoming an attorney. That must have its advantages.
Rob Sumner: It does. Most of my clients are associations. I’ve been in their world and know what’s keeping association executives up at night. I was an executive with the Georgia Chamber of Commerce before becoming an attorney and did a lot of work on membership development and government relations
AA: What is the biggest mistake that associations tend to make with regard to their social media sites?
RS: They find the youngest person on their staff and tell them, “You’re our social media person.” Often times the CEO is not as knowledgeable about maintaining social media sites. But what happens if the social media person quits, gets terminated or leaves for another organization, including a competitor? The association starts asking, “Who has our Twitter account? How do we get into our Facebook account? How do we do anything?”
Senior management might not have looked far enough ahead to say it needs usernames, passwords, etc. registered with the office. Make sure your association always maintains control of the sites. You don’t want to invest time and effort into your sites and get [a lot] of followers, then all of a sudden have the rug pulled out from under you.
AA: So, who really owns an association’s social media?
RS: If the site was created by an employee for the employer, then under the “work made for hire” doctrine, the employer’s ownership is imputed. On the other hand, if the [social media site] is done by a contractor or volunteer, then the work-made-for-hire doctrine doesn’t apply unless there’s an agreement in place. When it comes to working on your social media sites, you need to make things clear and get them in writing ahead of time. Make it clear that the site(s) are owned by the association—not the person who created them—even if their name was used to register the site. At the very least, get some kind of licensing or assignment document in place for the content.
AA: Do most of your association clients have those agreements in place?
RS: No. They’re looking for help. I try to help associations comply with the rules ahead of time. After working with them, many of my clients have policies and procedures in place well ahead of time. But, the majority of associations don’t necessarily do that and just let things fly until something bad happens and they wish they had done something to avoid it.
AA: Can you give any examples?
RS: I can’t talk about specific clients, but in cases I’m familiar with, ownership of an association’s social media passwords and usernames is very often not clear. Many times employees who created them have the impression that the social media sites are theirs since they built and managed them. If they go off to a competing employer, they may take all of their contacts and followers with them.
AA: How about talking about their association, i.e. employer?
RS: Section 7 of the National Labor Relations Act protects employees when it comes to discussing the terms and conditions of their employment with others. Many associations have a policy that prohibits employees from badmouthing them online. But there was a case in which a disgruntled employee, who was disciplined by a supervisor, went home and wrote a Facebook diatribe attacking that supervisor and the working conditions there.
As you can imagine, it created a ruckus. The supervisor was furious. The employee was terminated, but the employee got a lawyer and took the case to the National Labor Relations Board. The Board ruled that employees have the right to gripe to each other, including Facebook followers, about the terms and conditions of their employment. That’s a protected activity and the employee had to be compensated for the loss of their job.
AA: Suppose a passionate member or volunteer creates a Facebook page or LinkedIn group on their own and then the association decides to put its strategic footprint on it?
RS: Yes, this happens.
AA: So should the association partner with this member?
RS: My practical advice is, yes. Partnering with the member is the best way to handle the issue, especially if it’s helpful to the association. But, you should have something in writing about who owns the name and the logos being used.
AA: Suppose what they’re posting is negative about the association?
RS: In the case of the person writing something that’s unhelpful or damaging to the association, then the association has to make sure that the use of their name, logo and trademark is protected. The point is to make sure there is nothing said that could be misconstrued by the public about the source of the information—that’s a violation of trademark law. Employees can make factual statements about the association and name, but they can’t mislead the public into thinking they are the association speaking. In that case, the association should send a cease and desist letter to that person.
AA: If you had one piece of advice for associations, what would that be?
RS: Look into having social media policies in place before you start your sites. Just going through the process of developing a policy will raise these issues we’ve been talking about and will educate everyone involved about the issues and how to avoid them.
AA: Developing policies from scratch can be tough. How reliable are the templates you might find on the web for free?
RS: Many times they’re OK. But remember things change very fast today. You can’t be sure that everything you find on the web is accurate and up to date. Read it. Adjust it. Edit it. Consult with people who’ve been through it before.
AA: Any final thoughts for our readers and viewers?
RS: It’s very important to maintain control of your social media sites, your passwords and logins, etc. Those are your assets—they don’t belong to the employee who created the site. You need to protect those assets. Feel free to download the Social Media Policies checklist from our firm, Sumner & Associates, PC.
