LinkedIn is a website specifically for professional networking. While many employers still do not allow staff to access social networking sites during working hours, because LinkedIn has a business context it is often permitted where other sites such as Facebook are not. LinkedIn has business benefits: it raises profile and creates wide communities of contacts both internally and externally. However, on the flipside, the website essentially creates a database of contacts which are outside the employer’s control, leaving an open threat to a business of misuse of those contacts. So, to what extent can a company impose control over the use of LinkedIn, if at all?
This is a very new issue in the employment law arena and, to date, there have been no decided cases. This means there is little guidance on what the courts and Tribunals are likely to deem appropriate steps to protect against the threat. Each employee’s profile is very much at the hands of the individual and ultimately, they are in control of managing the account i.e. changing access, their email address etc. It would be very difficult for an employer to gain access, which would make it difficult to prove any misuse of contacts.
Clearly not all employers will need to protect against this risk – it will of course depend on your business and what could happen if someone did try to misuse your contact information. However, the following are some practical steps that businesses may wish to consider to protect themselves against the risks posed by LinkedIn and other social networking sites. After all, prevention is better than cure!
Social media policy
It is a good idea to have a social media policy in place to clearly define the use of networking websites in general, including LinkedIn. The policy can include a statement to the effect that all contacts remain the property of the employer and it may impose obligations to delete or return data to the company upon termination of employment.
The policy can also deal with other issues such as the fact that if an individual makes a comment on LinkedIn, even if that comment is made in a personal capacity it can still reflect on the employer – because the employer is listed on the employee’s profile. A well drafted social media policy will ensure that employees are aware of their responsibilities.
Where an employee gives notice that they are leaving to join a competitor, using garden leave can be a good way of protecting your business. Garden leave means that the employee serves their notice period away from the workplace – they remain your employee, but do not attend work. Placing an employee on garden leave enables an employer time to strengthen ties with existing clients, customers and other contacts while the employee is out of the picture, to limit damage upon the eventual termination of the employee’s employment.
It is important that you have a contractual right to put the employee on garden leave, otherwise you will potentially be in breach of contract. You should also ensure that your garden leave clause is properly drafted – if it does not specifically state that the duty of fidelity applies during garden leave, then you could find that the employee is able to act against your interests during this period.
Restrictive covenants are a useful tool for protecting a company’s interests after the end of employment. The risk posed by the misuse of LinkedIn contacts can be reduced by including properly drafted restrictive covenants in an employee’s contract. These can include a prohibition on soliciting, enticing, interfering and actually providing a service to those customers and/or contacts to whom the covenant applies, for a specified period after the end of employment.
However, in order for a restrictive covenant to be enforceable, the covenant must be drafted so as to go no further than to “protect the legitimate interests of the business”. Placing a carpet ban on an employee contacting or dealing with their entire social media network is likely to be too wide to protect the legitimate interests of a business and will therefore be unenforceable. Together with the approaches outlined above, carefully drafted restrictive covenants will be imperative to effectively protect a business from the risks posed by LinkedIn and other social networking sites.
Do you need advice on a social media policy or restrictive covenants? If we can help with these or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected])
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