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If an employment is terminated in circumstances where the employment contract imposes enforceable post-termination restrictions such as non-solicitation of clients/customers, can the ex-employee contact the client/customers and contacts on his/her LinkedIn account? Could this be viewed as solicitation?
Whilst these issues have been considered in a small number of Court cases, this remains an evolving area where the law has not yet caught up with technological advances.
Who owns the information in an individual’s LinkedIn account?
The LinkedIn User Agreement states that ownership of a LinkedIn account is personal to the account holder i.e. the individual, but in one case, the Court decided against the ex-employee and confirmed that the effective owner was the employer.
Updating the employment profile on LinkedIn
The question of ownership becomes important when an individual who has built up clients/customers during the course of employment announces on their LinkedIn account their departure from one employer and the identity of their new employer. This updating of their details on their profile triggers a notification to their connections. Can such “updating” constitute solicitation? Or can the ex-employee say that it is their account, what they do with their profile is up to them and anyway, the notification is being triggered by LinkedIn automatically.
In one case, the Court considered that the individual had crossed the line into unacceptable solicitation by inviting his clients to contact him. However, the Judge stated that a communication which had done no more than inform a client that an employee had left their employer was not solicitation “even if it contained the address of the ex-employee and even if it was sent in the hope that the client would transfer their custom”. This could suggest that a simple update of a LinkedIn profile would not amount to solicitation but this would depend very much on the circumstances.
What can the employer do to protect their business?
Until there are more Court decisions which bring clarity to this area of law, the advisable approach for employers is to clarify in its social media policy whether or not employees are encouraged to use social media for business purposes, whether they are permitted to add business contacts to personal accounts and what should happen to this information on termination of employment. There could be a specific condition included that on termination of employment, the employee must delete details of all business contacts made during the course of their employment. This would, at the moment, be the most sensible way for an employer to deal with this situation although, even then, enforcing such a condition could be problematic.
DMH Stallard’s Employment solicitors can assist with issues similar to the ones in this article. For more information and further advice, please contact Alan Finlay, Consultant in Employment.
