LinkedIn and other social media platforms are presenting ever-greater challenges for employers trying to deal with the risks of departing key employees. During their employment, the employee is likely to have connected – and often been encouraged by their employer to connect – with customers, suppliers, colleagues and other stakeholders. These connections (which we will refer to as “employment connections”) then remain part of the employee’s LinkedIn network. When the employee moves on, they will of course update their LinkedIn profile; within minutes LinkedIn will automatically have notified the employee’s network of their new job and contact details. And before you know it, your customers are being invited to congratulate your ex-employee on their new job: this is the “LinkedIn problem” referred to in the title.
Now, if the employee uses their LinkedIn profile to promote, for example, a new business venture before their employment ends, then normal rules apply and the employee’s activity will almost certainly be unlawful. But if the employee waits until after their employment has ended before using their personal profile, then the position is less clear cut. In particular, whether the employer owns, or has any other rights in, the employment connections remains open to debate.
Theft of proprietary information and soliciting customers by departing employees is of course nothing new, and employers should continue to use traditional methods to deal with these risks, including:
- Agreeing post-termination non-compete and non-solicitation restrictions in employment contracts (and taking care to ensure that these are not so broad so as to make them vulnerable to being challenged as unenforceable).
- Ensuring that any Communications Policy makes it clear that (a) the accessing, copying and/or use of company information for any non-business use is strictly prohibited, and (b) if applicable, the employer monitors employees’ activities in relation to the downloading, copying, emailing and printing of such information.
- After they have resigned, reminding employees of confidentiality and any other obligations which continue to apply after they have left, and making it clear that the employer will if necessary enforce such obligations.
- Where the employer has grounds to believe that the employee intends to breach their post-employment obligations (eg as a result of discovering that the employee has been taking copies of specific proprietary information), notifying the employee’s new employer of the ongoing obligations which apply to the employee and that such obligations will if necessary be enforced.
Whilst these steps will, at least on paper, deal with the LinkedIn problem, it is likely that many employees will consider that their personal social media profiles (including, as far as the employee is concerned, LinkedIn) will fall outside these obligations. Employers may therefore want to consider including some or all of the following provisions in the employment contracts of its key employees, as well as in their Social Media Policy:
- All connections made with employment connections on LinkedIn (as well as contacts on Twitter, Facebook and other social media platforms) during the course of the employment belong to the employer.
- Before they leave, the employee is obliged to delete all employment connections, and to provide evidence to the employer that they have done so.
- Any contact made by the employee via LinkedIn/other social media with employment connections after the end of their employment will fall within the scope of any post-termination restrictions which apply to the employee.
As with all measures taken to mitigate the risks of departing employees, I am not suggesting for a second that these additional steps constitute a perfect solution for the “LinkedIn problem”. But the need for employers to protect their business interests, goodwill and expensively trained staff from ex-employees remains as important as ever, and strategies for protecting these interests need to keep pace with developments in the way that business relationships are created and managed.