In brief

  • A recent UK Employment Tribunal case has highlighted the employment implications arising from employee use of LinkedIn. The employee sought damages for constructive dismissal after being disciplined for uploading a CV containing disparaging comments about the company to his LinkedIn profile page. The employee had also confirmed that he could be contacted for job opportunities within his profile preferences.
  • LinkedIn occupies an unusual space between traditional notions of personal and work activities, raising questions over the extent to which employers can reasonably direct their employees' use of LinkedIn. While not yet tested in Australia, it is likely to be reasonable for an employer to direct an employee to edit content published on a LinkedIn page amounting to a public solicitation of alternative employment offers. 
  • Employers should consider the crucial role of LinkedIn profiles as customer databases. Lists of customer details and requirements are clearly capable of constituting confidential information belonging to the employer. Use of those lists post employment may breach post employment restraints.
  • Employers should set specific guidelines for employee use of LinkedIn encompassing acceptable use, contact settings, approval procedures for publication of marketing content and third party recommendations and conditions of use after the employment ends.

A recent case in the UK Employment Tribunal has highlighted that LinkedIn may be useful in advancing individuals’ careers to the detriment of the employer. The employee sought damages for constructive dismissal after being disciplined for uploading a CV containing disparaging comments about the company to his LinkedIn profile page. The employee had also confirmed that he could be contacted for job opportunities within his profile preferences. The employer’s position was that this conduct was in conflict of interest with his employment and breached his duties of good faith and confidentiality.

While a decision has yet to be handed down, the case raises important questions over the manner in which employers can regulate employee use of so-called ‘professional’ social networking sites. Unlike social networking sites such as Facebook which commonly present issues surrounding the connection between personal use and the workplace, use of LinkedIn is more likely to be considered a work activity. As such, employers need to actively mitigate the risks of poaching of employees by competitors and of clients by departing employees. This requires the employer to implement policies targeted both at conduct during employment and after the employee leaves the company.

What can employers reasonably require during employment?

At the very least, employers can require during the employment relationship that employees:

  • ensure that their LinkedIn page contains no information that breaches the employee’s duty of fidelity. Whilst this duty would not generally prohibit an employee from seeking alternative employment whilst employed, it would prohibit an employee publicly soliciting job offers whilst simultaneously publicly identifying themselves as an employee of the company (as is often the case with LinkedIn profile pages), 
  • ensure that their LinkedIn page contains no confidential information of the employer, and
  • obey a lawful and reasonable direction to remove or amend publicly available pages.

Employers may (as in the case outlined above) supplement these general duties with more detailed policies with which employees are required to comply. Such policies might for example restrict the types of employees who are permitted to publicly represent the company on LinkedIn or the types of information permitted to be published.

In general, employees are required to comply with lawful and reasonable directions of their employer. This, of course, poses the question of whether a direction to remove content from a LinkedIn page can be considered ‘reasonable’. While this question has yet to be tested in Australia, such a direction is likely to be reasonable. In effect, publishing detailed CV information serves to either promote the employee’s career prospects away from the employer, or to generate further business for the employer. To the extent that it is the former, the employer is entitled to require the employee not to publicly solicit new job opportunities. To the extent that it is the latter, the employer may reasonably require the employee to conform to the company’s marketing policies. 

What can employers do when an employee gives notice?

Customer lists have frequently been the subject of actions for breach of confidence. Whether in the form of the old-fashioned Rolodex or an online client database, such lists have often been held to be information communicated in confidential circumstances and an employee is restricted from making use of them after their employment ends. Even where these lists have been updated by the employee, they have typically been considered to be information prepared in the course of and for the purposes of the employee’s employment.

Now consider the typical LinkedIn profile. Compiled by an employee over months or years in a particular role, the profile may be connected to hundreds of key stakeholders in client businesses. As each profile page is personally maintained, it is far more likely to contain up-to-date information and contact details when compared with traditional database models.

The key concerns for an employer in relation to a departing employee are:

  • the risk of a departing employee taking contact lists in the form of LinkedIn connections
  • restraining the departing employee from:
    • notifying clients of new employment via LinkedIn (whether actively contacting clients or passively notifying them by updating their employment details), and
    • misrepresenting their current employer (by failing to remove references to the former employer on their profile).

Employers for whom protecting client databases is of critical importance might implement an approach that involves the creation of LinkedIn accounts by the company on behalf of relevant staff.

Employers that do not wish to take such a hands-on approach may still implement a modified policy requiring departing employees to disclose their LinkedIn contact list and to negotiate with the employer as to which of those contacts are pre-existing (with whom the employee would be free to communicate) and those which are company clients (with whom the employee would be required to de-connect). To assist in this process, employers might take the further step of requiring new employees to disclose their contact list upon commencement of employment as a reference for future comparison.

Employers may also wish to restrict employees from updating their position and contact details for a certain period following departure, as this passive client contact effectively achieves the same outcome as sending individual messages to each client notifying them of the employee’s new position. It is most likely to be reasonable for an employer to restrict a former employee from contacting a client through LinkedIn (as a function of a post-term non-compete clause).

Suggested strategies

So what does this mean for employers in a practical sense? As with our previously recommended strategies1 for other social media such as Facebook, much turns on the broader approach to social media which the employer wishes to adopt across its business. Practical options for most employers include:

  • reviewing relevant policies (social media, IT, conflict of interest etc.) to ensure that the selection of the ‘career opportunities’ checkbox is expressly prohibited. To ensure compliance, employers might consider a firm-wide communication to remind employees of their policy obligations followed by subsequent auditing,
  • restricting employees from uploading CV details to publicly available pages without approval. Approval might be limited either to a subset of employees, or be subject to review by marketing or business development teams to ensure that the employee’s page is broadly consistent with the firm’s marketing strategy,
  • clarifying the company’s position on employees ‘recommending’ third parties on LinkedIn (for example, to be consistent with its general policy on references), and
  • develop a targeted policy on employee use of LinkedIn.

The effectiveness of these strategies ultimately requires employers to be alive to the issues and to plan ahead. Professional social media use potentially offers tremendous benefits to business development, and in any event its usage is now entrenched within a number of employee demographics. In short, its usage is a reality for which employers need to be adequately prepared. By implementing a targeted policy approach supported by ongoing training, communication and auditing, employers can maximise the benefits associated with professional social media use whilst effectively protecting their existing client base.