Ever since the days that employment law was referred to as “master and servant” law, employees have owed various common-law duties and, for some employees, fiduciary obligations to their employer. These obligations take many forms, but key is that an employee cannot misappropriate an employer’s confidential or proprietary information. In the days before social media, this was fairly easy to describe. Generally speaking, an employee could not print or email to himself a copy of the employer’s customer list, and then use that list to compete against the employer. But what if that customer list is not a document, but is kept on a LinkedIn page?
Thankfully, as described by my colleague Roland Hung in his post, a recent UK decision (Whitmar Publications Limited) has upheld an employer’s request for an injunction where former employees used an employer’s contacts on a LinkedIn page to compete against their former employer. This is one of the first decisions to affirm a traditional principle to a new medium. That is, just as an employee cannot print a customer list, take it home and use it for competitive purposes against his/her former employee, an employee cannot use an employer LinkedIn page with customer contacts for the same purpose.
This is a very important “win” for employers. While the case is not Canadian, it will be relied upon by those of us who represent employers as authority that employer contacts on social media are still confidential/proprietary information belonging to the employer that cannot be misappropriated. It is important to note that the case did not deal with an employer’s interest in an employee’s personal LinkedIn account.
What are the takeaways for employers? Again, my colleague Roland Hung notes the following.
In order to protect your LinkedIn network information, do the following:
- Set clear guidelines regarding the privacy and confidentiality of your LinkedIn networking information that is communicated to anyone – employees or otherwise – with access to this information.
- Through employment or training documents, ensure that all employees are aware of the proprietary interest that you have in all of your contact management software, which includes LinkedIn.
- Keep your company’s LinkedIn groups and networking separate from employee’s personal LinkedIn profiles or groups.
- Ensure that every employee who is responsible for maintaining your LinkedIn databases and LinkedIn presence is doing so on your premises, on your equipment and for compensation as part of his or her job description.
This case is another example of why all employers should have a social media policy. My earlier post sets out what to include in such a policy.
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Ontario Employer Advisor
Published with permission from McCarthy Tétrault LLP
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