Ownership of LinkedIn contacts
Who owns LinkedIn contacts that employees create whilst employed: the employer or the employee? Gannons worked to provide an employer with access and control over their employees’ LinkedIn contacts.
LinkedIn contacts were key for our client, which was a recruitment company focused on the financial services industry. Our client’s consultants used LinkedIn to generate new business contacts. Departing employees could use the LinkedIn contacts that they created during their employment for their own, or a competitors’ benefit. Our client wanted its employment contractual terms and procedures to protect its business and intellectual property.
We reviewed our client’s existing contract and policy documentation, which included standard confidentiality provisions. These prohibited the use of confidential information belonging to the company. The terms specifically mentioned candidate and client lists. There were also restrictive covenants that prohibited soliciting candidates and clients, including prospective candidates and clients.
LinkedIn contacts and standard confidentiality terms
The LinkedIn contacts raised problems. Standard form confidentiality and restrictive covenant clauses do not address the fact that an employee’s LinkedIn contacts may not be confidential because other people can view an employee’s LinkedIn contacts.
Additionally, what if an employee keeps their contact list on LinkedIn and nowhere else? Does the employer own the LinkedIn contact list? Do they have a right to access the LinkedIn contact list?
Arguments for employees owning their LinkedIn contacts
An employee can argue that they own their LinkedIn account information and the employer has no right of access to their account.
This is on the basis that an employee’s account includes personal contacts that predate their employment and friends who are not business contacts. Furthermore the LinkedIn user agreement is between an individual and LinkedIn, not between the individual’s employer and LinkedIn.
Difficulties for employers with owning LinkedIn contacts
LinkedIn operates in a way that makes restrictive covenants difficult to enforce. When an employee moves to a competitor they update their LinkedIn details. Their connections learn of this status change. Arguably, however, this is not a targeted request to do business that would amount to a breach of a normal non-solicitation clause.
LinkedIn contacts: best practice for employers
We recommended our client instituted:
Dedicated LinkedIn account
Employees should use a dedicated Linkedin account during their employment. Employees only use this account for the company’s purposes. Thus, both employer and employee agree that all contacts and connections belong to the company.
LinkedIn performance measures
Our client introduced new performance measures, that were based on clients and candidates generated on LinkedIn.
Employers’ contact database
The employer created a database, to which employees copied their LinkedIn contacts.
LinkedIn account settings
Our client defined required LinkedIn account settings. Thus, an employee’s connections could only see contacts both parties held in common. This means an employee’s connections would not see any new connections.
Right of access
Employees signed agreements giving the employer a right of access or password control. This allowed the employer to gain control of the LinkedIn account when the employee left.
Actions on departure
When employees left the company, they agreed to delete their LinkedIn business contacts and connections from the LinkedIn account.
New restrictive covenants
We added and amended the restrictive covenants to specifically refer to social media accounts. The covenants explicitly stated that soliciting clients and contacts includes status change notifications and reconnecting with clients and contacts.
We believe these recommendations properly protect our client’s business interests and limit the risk of costly litigation.
Gannons are ahead of the curve when it comes to social media regulation, and we are very grateful for their assistance in this matter.