The policy should at the very least make clear whether the company or the employee will own job-related social media accounts, said John Delaney, a partner with the law firm Morrison & Foerster.
"In journalism, for instance, sometimes the journalist might have a larger following than the newspaper or magazine itself, so spelling out a policy up front could even be a topic of negotiation," said Delaney, who heads Morrison & Foerster's social media practice group.
If a company wants to claim ownership of a social media account, ideally it will keep the employee's name out of the account name, and instead reference the company's name or its brands, he said. And if a company owns an account, it should be used exclusively for business, and not for employees' personal use as well.
"If a company is going to encourage its employees to use their own personal social media accounts for work-related posts and tweets, the company should not expect to obtain ownership over such accounts as a result," Delaney said.
Even when the account is personally owned, there are still legal gray areas when it is used, even if only in part, for that person's work or business.
"Even though the existing practice of the overwhelming majority of employers recognizes employee privacy rights with respect to private, password-protected social media accounts, we recommend that employers undertake a careful review of their social media policies and practices," said Latham & Watkins attorneys Linda Inscoe and Joseph Farrell.
Consider a case in which an employee starts a personal blog related to work, develops a long list of email subscribers and later leaves the company, said Latham & Watkins' Archie.
"Is that list intellectual property? If so, who gets it?" Archie said. After all, going back to the New York Times example, "seventy-five thousand followers on Twitter starts to be worth a little bit of money."