During the course of employment, employees often add contacts to their LinkedIn profile as a means of developing relationships and increasing business. Problems can arise when an employee’s employment ends. The employee will often argue that the contacts have become friends and not just business contacts and an employer will be concerned that the employee may use these contact details as a way of contacting clients to solicit business away from you going forward when they join a competing business.
The following scenarios are worth noting:
- It is likely that any contacts that the employee already has on his own LinkedIn profile prior to commencing employment will continue to belong to him after the employment ends. However, this will not always be the case where the employee has brought clients to the new employer. There would then be a question as to whether those client contacts then belong to the new employer.
- Where the employee has taken the names from an employer’s client database and connected with the clients on their individual LinkedIn profile, it is likely that these will remain contacts belonging to the employer. Employees then often argue that they are contacts for personal rather than work purposes.
- Where the employee has managed a LinkedIn profile for you as the employer as part of their duties, it is likely that the contacts will belong to you as the employer.
In certain circumstances, the following remedies may be granted by the Court where you have an actionable claim:
- Ordering the delivery up of the passwords and the account
- Ordering that certain contact details are deleted from the employee’s account
- Damages for any breaches of confidential information
- Damages for any breaches of post-termination restrictions (restrictive covenants) in contracts of employment
Employers should be mindful of the preventative measures that can be put in place which may reduce the risk. Points to consider are as follows:
- An express clause within an employee’s contract of employment which prevents soliciting or dealing with clients that have been added to the employee’s LinkedIn account which is likely to act as a deterrent but could be difficult to police. The use of non-competition restrictions may be reasonable in this context.
- An express clause requesting that the employee provides you with contacts and passwords when they leave your business
A post-termination restriction in an employee’s contract of employment will only be enforceable if it protects a legitimate business interest. If it does not, it will not be enforceable as it is likely to be seen as restraint of trade. It is therefore important to draft these clauses carefully taking into account the employee’s specific role and your particular business.
If you require any advice on the protection of your business’ confidential information or the drafting of post-termination restrictions in contacts of employment, please contact me on 0845 287 0939 or complete an online enquiry form.
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