Many of your employees, particularly sales and marketing people, will use LinkedIn as a business development tool. You probably encourage it. The site provides a mine of information for those with time to trawl through it, make the right connections and build relationships. But does that mean that the relationships behind the connections are simply lost to your business when the employee leaves? What about those carefully worded restrictions you put in employees’ contracts banning them from soliciting or dealing with customers or potential customers? The good news is that the law is beginning to recognise that employers deserve protection in relation to contacts that are made on “open” sites such as LinkedIn.
In a case earlier this year, a recruitment consultant moved to a new agency and started contacting the clients and candidates that she had connected with on LinkedIn in her old job. She argued that the LinkedIn profiles were in the public domain and that there was no restriction on her using the information. Her old employer argued that she had made connections for the purposes of its business and that the restrictions in her contract that prevented her soliciting clients or candidates or dealing with them for a period after she left should apply to her LinkedIn connections.
The court agreed with the employer: it took the view that the LinkedIn connections she had made in her job were for the purposes of her work for her employer and that she connected with certain individuals because she knew that they were actual or prospective clients or candidates. That gave her old employer a legal interest to protect and meant that the restrictions on solicitation and dealing could apply to the people who were her LinkedIn connections, even though their profiles were accessible to anyone.
This is good news for employers. It gets to the heart of the matter and cuts through irrelevant factors such as the LinkedIn account being in the individual’s name, or the fact that many people have a mix of professional and personal connections on LinkedIn.
However, the law in this area is still fairly embryonic, so you should consider various measures to help put you in the best position to protect your business:
- have a policy on social media or LinkedIn use, and make it clear that employees make connections for the benefit of your business – unless you state the ground rules employees might be able to argue otherwise;
- you could also include a rule that requires employees to disclose their account access details or make their connections visible to you so that you can see what they are doing if you want to;
- when drafting contracts or confidentiality policies, include LinkedIn in connections and other contacts as examples of confidential information;
- use well-drafted, tailored restrictive covenants (non-competition, non-solicitation and non-dealing clauses) to protect your business after an employee leaves;
- act if you detect suspicious behaviour by employees: installing monitoring software or examining an employee’s PC or phone records can help you obtain evidence of their conduct or intentions.