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Linking into LinkedIn

12 March 2015

LinkedIn now has over 347 million registered users, with two new users joining every second.

Despite these large numbers, it rarely makes the headlines in the same way as Facebook and Twitter and this is perhaps due to the fact that there is little ‘sharing’. (Last month only 2.2% of online sharing was done through LinkedIn). This means that, in contrast with other social media, there is considerably less need for an employer to deal with an employee who behaves inappropriately online. Does this make LinkedIn a ‘safe haven’ for employers who have to deal with the effects of social media in the workplace?

Unfortunately not! Although in general, the problems associated with LinkedIn are very different to those commonly associated with Facebook and Twitter.

Employers usually encourage their key employees to be active users of LinkedIn in order to promote their brand and interests. This will often mean that the company logo appears on the employee’s page, and perhaps their corporate photo too. The dilemma for the employer is how to encourage an employee to make lots of connections in order to promote its brand, whilst protecting itself from the risk of losing those same connections (which are essentially a ‘database’ of potential future business) when that individual leaves the organisation and takes their LinkedIn account with them. In this situation the key questions tend to be who really owns the account? And who owns the content and connections?

In answering these questions, the courts have, so far, tended to side with the employer by ruling that the LinkedIn list contacts belong to the employer, not the employee. That said it should be noted that these cases have been few and far between, and have included scenarios where an employee has transferred contacts from his employer’s database to his LinkedIn profile immediately before leaving the company!

A further problem is that of post-termination restrictions and whether they include LinkedIn. In particular can a restriction which prevents contact with key competitors be said to include LinkedIn?  This is particularly relevant if the ex-employee is job hunting and seeking new opportunities through LinkedIn; does approaching a LinkedIn user who works for a competitor constitute trying to take clients away from your old employer? You can see the problem and the potential pitfalls!

Here are some golden rules that employers should follow to manage the risks to their business when their employees use LinkedIn accounts:

  • Ensure your social media policy gives guidance on the use of a LinkedIn account.
  • Ensure the account clearly belongs to the company and is under the company’s control (for example, the employee should use their company email address, corporate photo and text, and insist all passwords should be handed over on leaving).
  • Require all employees to pass on new connection details so they can be added to the company database.
  • Use contractual provisions to protect you as much as possible: eg impose full disclosure or deletion of all connections on termination of employment, or consider imposing a ban on updating a LinkedIn account during garden leave (and ensure all key staff are automatically placed on garden leave after they hand in their notice).

Contact anyone in our employment team if you require assistance with any social media queries or need us to create or review your company’s social media policy.

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Disclaimer: All legal information is correct at the time of publication but please be aware that laws may change over time. This article contains general legal information but should not be relied upon as legal advice. Please seek professional legal advice about your specific situation - contact us; we’d be delighted to help.
Matthew Clayton MA LLM (Cantab), CIPP/E
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Mathew Clayton
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