Is your LinkedIn account proprietary information?
Networking sites like LinkedIn now make it easier than ever before to ‘link’ with colleagues, clients, and potential clients, and to keep instantly updated with changes in contact details. Employees’ LinkedIn accounts often mirror (and in some cases, comprise) their employer’s client databases – information that is usually jealously guarded and strictly protected by enforceable confidentiality, intellectual property and proprietary restraint clauses in employment agreements.
But if those links are created and maintained in the course of employment, then to what extent can an employer control or even claim ownership of an employee’s LinkedIn contacts? Could an employer require a departing employee to relinquish his or her contacts, or even delete an entire LinkedIn account, in the name of protecting valuable confidential or proprietary information about its clients?
Ownership of LinkedIn accounts, and the information within those accounts, is likely to become an increasingly topical employment issue. The law is currently far from settled, and cases from the USA and the UK simply highlight the complexities that can arise. What is relatively certain, however, is that if employers make no efforts at all to claim ownership and control of LinkedIn account information within its employment relationships, any later attempt to take action against employees for using that information is likely to fail.
With this in mind, employers can take a few simple steps to put themselves in the best possible position to protect client information, and to prevent employees from using contacts after employment ends to effectively set up in competition.
- Have a clear and targeted social media policy and supporting procedures in place. The policy should set out expectations and requirements regarding networking sites like LinkedIn, including a clear statement as to the ‘ownership’ of contact information that is gained or established in the course of employment, and obligations to notify the company of any change in contacts’ employment or contact details.
- Underscore the importance of your social media policy by including specific agreed clauses (in employment agreements or in separate agreements) relating to professional networking obligations. This would be the best place to include any requirement for employees to delete all ‘company-owned’ contacts at or prior to the termination of employment, as any failure to do so may be actionable as a potential breach of contract.
- Enforce your policy, procedures and expectations throughout employment. It’s one thing to have a policy in place, but quite another to use it effectively, and to ensure that employees are aware of and complying with it.
- Make sure that employment agreement provisions relating to confidential information and restraint of trade are targeted, robust, and deal with the possibility of those provisions being breached if an employee fails to observe agreed obligations or requirements in respect of LinkedIn.
by Ros Webby