As the world’s largest professional network, with around 11 million UK users, LinkedIn can be a hugely beneficial tool for businesses. In fact, many employers are now actively encouraging employees to use it strategically to benefit their business.
Attempting to prevent employees from liaising with contacts and potentially poaching clients once they have departed a business has long been an issue. This has become an even greater problem in the social media age, where real-time access to information allows almost immediate connections to individuals and businesses across the world.
On the surface, it’s easy to see why employers encourage their staff to make new connections, build up a personal following, and generate a buzz around themselves and their company online. However, this opportunity to connect with new contacts at the click of a button is causing a whole new set of challenges for businesses.
As an employer, there are a number of things to be aware of that include, but are not limited, to the following:
Account ownership
LinkedIn’s membership terms state that an individual owns any LinkedIn account in their name and should not let third party users have access to their account or password. While LindkedIn’s terms have not been tested in the courts, they do present a potential challenge to employer policies which require employees to engage with new business leads and prospects by using corporate accounts belonging to the employer, rather than their own personal accounts.
Connection ownership
Many social media policies are drafted on the premise that any connections made by the employee during the period of employment belong to the employer. This includes the idea that any business contacts made by the employee during this time should be deleted following an employee’s departure.
Again, this has not yet been tested in the courts and until clear guidance on what the procedure should be is given, it makes sense for employers to identify practical ways to deal with the risks. Primarily, they should ensure that an employee’s connections are transferred to an internal database as and when they are made. While this won’t necessarily prevent a former employee from misusing information, it does ensure that the employer has access to these connections once the employee has left.
Protection of confidential information
Laws surrounding confidential information tend to be what employers turn to first when former employees exploit LinkedIn contacts made during their employment. Unfortunately, given that contact details are publicly available on LinkedIn, this is something that they are likely to be unsuccessful with in the courts.
The Copyright and Rights in Databases Regulations, 1997, could convey more success. This legislation could enable employers to argue that LinkedIn connections made by an employee during their employment make up a database. Here, as the owner of the database, an employer’s rights would be breached should the data be used by the employee without authorisation.
Use of traditional terminations
Employers can impose post-termination restrictions on their employees, preventing poaching or working for a competitor, by including them in their employment contracts. However these restrictions don’t always explicitly refer to LinkedIn.
A recent court case provides a good example of when this was considered. After a former employee announced that they had secured a new job on LinkedIn, the courts had to deliberate whether this could be considered an attempt to solicit the former employer’s customers, many of whom were LinkedIn connections.
The court found that this did not amount to solicitation, but had the restriction the employer was trying to rely upon specifically referred to conduct on LinkedIn, the outcome could have been very different.
So what can employers do?
As the law in this area is still grey, employers must understand that the legal protection available at the moment is not entirely adequate. Nevertheless, employers can still take important steps to give themselves the best possible protection, including introducing a social media policy from the outset, and reviewing their covenants and policies every couple of years to reflect ever-changing online practices.
Social media policy should state that when somebody leaves the company, they should remove business contacts that they have added to LinkedIn during employment. The policy should specify that records of connections made are added to a separate database to ensure the company retains them following an employee’s departure. Businesses should ensure that all relevant restrictive covenants are properly modified to cover the circumstances referred to above.
Employees should also be encouraged to use corporate LinkedIn accounts when networking on behalf of the business, which are stated as being the property of the employer and must be handed over when the employee leaves the business. Again, whilst this is not necessarily legally enforceable, it is likely to have a practical impact for employers, as it sets out clear expectations for employees.
Clearly, while it’s still a very hazy area, efforts in recent months do represent the need for the implementation of positive and practical steps which will help overcome the risks presented to employers by the growing use of social media.
For more information, please visit http://www.mlplaw.co.uk/
Gareth is an employment law solicitor at MLP Law. He specialises in employment law, advising on general employment issues and providing assistance at all stages of the employment tribunal litigation process, primarily for employer clients.
