Ownership of LinkedIn ContactsPosted in : Seamus Says - Employment Law Discussion on 1 February 2019 Issues covered:
Q: Does my company have the right to request access to my LinkedIn contacts following my resignation?
“I’ve worked for the company for five years in a relatively senior business development role. I recently resigned from the post and plan to work for a competitor in a different geographical location. I presume they will place me on garden leave." Presumably, I’m not surprised. "The company has informed me I must upload all of my 1,800 LinkedIn contacts onto their system over the next few weeks. It is a private social network and there is nothing in my contract that states I am obliged to do so. I also have holidays accrued and anticipate they will deny me these if I do not upload the information. Any advice?”
Scott: I suppose we could spin that around. If this were an employer. They’ve got an employee who’s gone away. They’ve got loads of LinkedIn contacts. They want to put them on garden leave. If they don’t do it, they’re going to steal their holidays off them. I can see that one working well. Seamus, any advice on this particular one?
Seamus: I think this is a common occurrence now for employers. Employers will seek to protect their business, essentially. Where you have an employee as a senior manager within your business and you get notice of the fact that they’re leaving and whether or not they’ve disclosed they’re going to work for a competitor or not, I’m not sure, but you can imagine the red flags up for the employer straight away. They are looking at this presumption of being placed on garden leave. The interesting aspect is really around these contacts, these 1,800 contacts they have on LinkedIn.
This really is an interesting question. There are a couple of cases that have been dealt with going back even as far as 2008, but the real crux of this matter will come down to what the contract says and really whether or not the contract provides for restrictive covenants and what it says about your business contacts and the ability for you to be able to contact those contacts.
Scott: This particular question, the person says there’s nothing in the contract. It puts the employer in a very weak position.
Seamus: On the back foot immediately because you put this before a judge and if you’re seeking injunctive relief, the judge will want to see, “Where’s the written contract here? Where’s the ability for me as a judge to enforce this upon the employee?” If there’s nothing in writing, you’re in a serious difficult position as the employer. There’s no doubt about that. Even if you do have something in the contract as well, I think it’s interesting in and around what we have within LinkedIn.
We’re all encouraged now within our business to promote ourselves on the likes of social media and for business, LinkedIn is the really important one. We’re encouraged in work to network and to get out there and make our links and create our web in terms of our business activity. So, we’re very much encouraged in work to do that, but we’re also doing it from the very personal level.
So, it depends. If you go to a Legal Island event, for instance, as a lawyer, you meet 10 HR managers, that’s great in terms of being able to contact and make contact with those individuals. Hopefully, they might want to come back and seek advice off of you. You’ve done that because you’ve attended a work event, maybe work paid for you to attend the event. The organisation may feel very much, well, that’s part of our business. That’s our ownership of that.
Scott: Part of your job as a professional is to go out there and bring in money. You're a peer.
Seamus: Yes. But in addition to that, it’s also a very personal issue for the employee because . . .
Scott: Because you made the contacts.
Seamus: They’re the one making the contacts. There’s a very good argument that the employee could say, “Well, look, the two of us went from the office. I went and made 10 contacts. I put them into LinkedIn and I have now got associations with them. My colleague went and made no contacts whatsoever.”
Scott: Probably busy listening to the speakers at Legal Island is what they were doing, doing their job. That's what they were doing.
Seamus: I would never be saying that lawyers are only going to Legal Island events for contacts. Absolutely not. We are going to learn. You could see the two sides of the argument in relation to this. Ultimately, from a legal perspective, it has to come down to what is in writing here. What does the contract say? I think this is an interesting area. It’s a developing area where we all use our contacts.
Scott: Yeah, because LinkedIn actually says that the contacts are personal to their account holder, don’t they? My LinkedIn contacts are mine, but the fact is the vast majority of people who contact me, they do so because I work for Legal Island.
Seamus: It’s in a business capacity.
Scott: Or because I used to work for the LRA or whatever it happens to be, but it’s to do with my professional life. Now there’s nothing in my contract. I have no restrictive covenants. So, anyone out there that wants to me offer me shed loads of money, I have no restrictions. At the same time, I have a very good relationship, clearly, with my employers. That’s the best thing. If you have nothing in writing, the fact is that we have both grown. I have grown as an individual, as a professional, because I’ve worked for Legal Island.
I’ve brought in lots of people into Legal Island. Claire here, who’s working the technology today, she works in L&D. She deals with most of the writers in Legal Island. You build up personal relationships. To try and stop that going forward when it could be because of that personal relationship with somebody, in a professional capacity, if you like, but because we get on, I’ll be able to send work back to Legal Island, have every I had to leave. It’s much better that you can actually work.
Seamus: Absolutely. The other interesting point as well is there’s another argument that your LinkedIn will go and fish contacts out of for instance your emails, your Outlook, and even then emails that you’ve been sending to people, all of a sudden you’ll see they’ll pop on your LinkedIn as a recommended person to connect with. Again, there’s an argument that your business could be saying, "Well, you’re only emailing those people because of work and therefore, that forms part of it."
You do see a lot now in terms of if you’re looking to compromise agreements where it will say in the compromise agreement that the employee will no longer hold themselves out to be associated with the company or the employer. They’ll specifically maybe mention the likes of LinkedIn and other social media websites that are there.
But that is slightly different in terms of you’re not necessarily holding yourself out whenever you’re taking all your contacts with you. The reality is let’s face it, the contacts are going to be within the knowledge of the individual anyway. So, it has to be coming back down to what’s contained within your contract of employment and/or your restrictive covenant agreement, what you can and can’t do post-termination.
As you say, ideally, the best way to deal with that, certainly, would be, again, communication, discussing it. If you were saying, “I’m moving on here, but you know what, in my new position, I’m not going to be able to deal with certain aspects and anything that comes my way. Sure. I’ll send it back to you and we’ll keep the relationship going.” There’s benefit there for both. Unfortunately, it doesn’t work out that way all the time.
I think the key here would have to be for this query to say that if your contract is clear and it doesn’t provide any restrictions in terms of the use, my advice to this person would be your LinkedIn contacts are your LinkedIn contacts. They’re not that of the business, unless it’s specified in their final contract.
Scott: Similarly on the holiday issue, if the employer denies - it’s a simple unlawful deduction in terms of holiday.
Seamus: Bottom line, you’re entitled to any accrued but untaken holidays upon the termination of your employment. If you’re going through a garden leave period, the employer can certainly request that you use your holidays during that period, which will save the employer a few quid. But ultimately, the refusal by the employer to pay those holidays amounts to an unlawful deduction of wages claim and you would have right of recovery, either in the tribunal for that or potentially in the court system as well.
Scott: Okay. Well, restrictive covenants comes up every once in a while. We can look maybe later on if you have questions simply about confidential information and whether you’re allowed to take some of that with you. The short answer is generally no under the Fowler v Faccenda Chicken case. Maybe also look if there are people there who are concerned about fiduciary duties and the more senior directors and all that kind of thing. You were going to say something, Seamus, before we move on?
Seamus: I just want to mention there—we probably haven’t got a chance to go through them at this point, but if anyone is wanting to look at the case law on that, there’s the Hays Specialist Recruitment Holdings Limited and the Ions case of 2008, which is the earlier case. There’s a more recent one in 2013, which is the Whitmore Publications Limited. I’ll just leave it at Whitmore Publications. It’s far too long for me to give you the rest of it. It’s 2013, interesting cases. You can see the approach the court takes and also, the quagmire that it is for the courts as well and how they break it down to say, “Well, what are your contacts and what’s the business contacts. How have the contacts been made?” So, it’s not a straightforward answer, but ultimately, if it’s not in writing, you’re in difficulties.
Scott: I suppose that just reflects that if you look at my Outlook contacts and my LinkedIn contacts, there will be personal and professional contacts and how you separate those types of things out is always going to be difficult.
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