Does an employer have any control over an employee’s use of LinkedIn or any rights in their account when they leave? The current answer is uncertain due to a lack of case law on what may be an important issue, made difficult by the fact that most employees establish personal accounts and the dual use of LinkedIn as a business tool and career advancement mechanism. While most employees lead their profiles with their current employment and add new connections though their work, personal account holders may have an established group of connections, developed independently or through previous employment, on which they will continue to build through their job and personally. The new connections gathered for or as a result of the current employer’s business may have commercial value to the employer and the way an account is used or displayed may raise questions of competitive advantage, confidentiality and contractual compliance.
For example, consider an employee who allows visibility of connections to other connections and broadcasts an update when assigned to a new customer’s project. The employee’s visible connections with key personnel of customers can provide sensitive, competitive information to the employee’s connections at a competing business. Broadcasting the update of assignment to a new customer project may be a violation of the employee’s confidentiality agreement with the employer. The broadcast or listing of a specific project could also be a violation of the employer’s contract with the customer, which may restrict any form of publicity mentioning the customer name, including the fact that a business relationship exists.
There is currently very little case law on these issues, which go beyond the National Labor Relations Board decisions on non-supervisory employee use of social media involving concerted activity and free speech, as well as the case law on discrimination in hiring through access to social media. While we do know that some of the basic old rules like don’t lie, cheat or steal still apply, the new rules necessary to deal with social media and their nuances are definitely in early development.
There is one trial court case which holds that the availability of information on a company’s customers or vendors on LinkedIn or other social media may result in loss of trade secret status of such lists, and another trial court decision holding that an employer may take over an executive employee’s personal LinkedIn account on termination, at least where no damages recoverable under the Computer Fraud and Abuse Act can be shown. While a court in England ordered a former employee who resigned to operate a competing business to turn over all LinkedIn connections to his former employer, the question of what can happen when employers encourage employees’ use of social media for work and then claim that connections are confidential information when the employment ends is far from settled there or here.
The identity of a company’s customers, vendors and business partners as well as its ongoing relationships with those entities is, in many industries, critical information which requires protection. There are some practical measures a company can take which may provide more internal certainty when these issues arise and perhaps more predictable results if litigation ensues. An employer with the need to protect this kind of information from public disclosure or even own it for future use should consider:
- Creating company owned LinkedIn accounts for use by employees, which would totally resolve the question of ownership of connections and methods of use or at least put the question on the table at the outset for negotiation.
- Use of confidentiality, non-disclosure or non-compete agreements with employees that specifically address customer, vendor and competitive information on LinkedIn or which could be available on other social media or internet sites.
- Adoption or development with employee participation of an employee policy on social media which clearly addresses use and disclosure of company information and connections developed through employment on LinkedIn and similar social media sites, with consequences for violation.
- Educating employees on why dissemination of sensitive company information on LinkedIn and other social media can be detrimental to the business, for what the Director of Sales understands innately may not be at all apparent to a junior level worker.
These are not universal solutions to the myriad of new business problems that social media is presenting on a daily basis, but practical crafting of old tools to deal with these new problems. Using these traditional tools may, however, serve to answer the questions of who LinkedIn connections belong to and what information is fair game for posting until more guidance from the courts develops.