LinkedIn or “LockedOut”? Policies and restraints on employee use of Social Media

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Mark Cox & Lauren Wright

LinkedIn is now a widely used and essential tool for business and employees alike to grow the reach of their brand.

More broadly, people ubiquitously use various social media platforms on a daily, personal and professional basis, including during or connected with their employment. Colleagues at work are frequently “friends” on Facebook.

What issues does this brave new world raise for employers? Many.

For a start, there are the employer’s legitimate interests in protecting its confidential information and client connections. Secondly, employer businesses will be wise to social media policies and take steps to ensure employees are counselled against inappropriate conduct or commentary on social media that might expose the business by association or vicarious liability to various claims or reputational damage.

As to protecting an employer business’ interests, an employee’s direct access to client connections and information after their employment ends raises interesting questions as to whether an employer can take protective steps to limit or prevent the ex-employee’s use of their LinkedIn.

For example, can an employer extend the scope of restraint of trade and confidential information provisions to the employee’s LinkedIn profile and connections? We would argue that they can, at least to the extent that the account was developed in and for the purposes of that employment – and to the extend it necessarily involves regular dealings by that employee with those clients, customers, suppliers or other parties with whom the employer has a commercial interest.

Important issues in relation to an employee’s LinkedIn account are:

  1. ownership of the connections an employee makes on their profile during employment;
  2. whether interactions post-employment could constitute soliciting clients;
  3. the extent to which an employee’s conduct on LinkedIn or any other social media platform might expose the employer to harm or claims.

Given the novelty of these issues to the law, there is some uncertainty. However, best practice is to ensure you have appropriate measures in place to protect your business.

As an employer, you can protect your confidential information, goodwill and client, supplier and employee connections via restraint of trade clauses by:

  1. defining ‘confidential information’ and ‘solicitation’ in your employment contracts with specific reference to your employees LinkedIn connections and updating information on future employment; and
  2. having a workplace policy that provides for the ownership of LinkedIn profiles and connections which may include directing employees to delete any connections made during employment and on termination.

If an employee has a client facing or business development role or their activities are otherwise centred around client interaction on LinkedIn on behalf of the business, it may be prudent to pay for that employee’s LinkedIn Premium account to reflect your ownership of that account. Retaining passwords and access to that account will demonstrate that the account is business property and not an employee’s private or personal account.

Besides having suitably drafted restraint clauses, provision could be made in the employee’s contract obliging them to surrender their passwords to the account.

Workplace policies also need to address appropriate employee conduct when engaged in all social media, including LinkedIn, to ensure against exposing the employer business to being associated with inappropriate posts that may damage reputations or lead to claims of defamation, discrimination, harassment or bullying.

LinkedIn is one example of how new technologies and social media “disruptors” are intercepting with the workplace in ways that challenge our traditional notions of employment rights and obligations.

Another is how workers engaged in the gig-economy are to be classified in the employee/contractor dichotomy – that will be the subject of another article.

It is important to get expert legal advice on these new frontiers in business and working life.

 

 

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