Social media is a force that cannot be ignored in today’s business world. It can be a positive tool for management, but also a minefield for HR. The implications of Facebook and Twitter are well known, but the potential for disputes related to LinkedIn, the “world’s largest professional network”, is only just starting to be realised.
Problems can arise when employers try to use individual employee LinkedIn accounts as a marketing tool, as illustrated by a lawsuit that arose in the US last year. Edcomm, a company that provides training in the financial industry, created profiles, connected with clients and posted updates for its employees. When an Edcomm co-founder was terminated, the company changed her LinkedIn password and replaced her photo and contact details. The ownership of the account remains under dispute.
LinkedIn enables members to keep in contact with business acquaintances even if either party moves to a new employer. It has become a ‘virtual rolodex’ of business contacts. While employees may be bound by confidentiality restraints that prevent them from removing information when they leave an employer, an employee with a LinkedIn account now has easy access to business contacts without physically removing any information.
The temptations posed by this access were highlighted in a recent unfair dismissal case decided by the Fair Work Commission. Dissatisfied with his workload and remuneration, interior designer Bradford Pedley sent a message through his LinkedIn account soliciting work for his side business, to a group that included several important clients of his employer. His employer dismissed him the next day. The Commission was unsympathetic to Pedley’s claim, and said that Pedley had breached his fundamental obligation by putting his own interests above those of his employer.
After the employment relationship ends, restraints on solicitation can be used to protect customer relationships from poaching by ex-employees. A LinkedIn profile update can alert clients to an employee’s new job, and will not be considered a solicitation, but if a former client contacts the employee as a result of seeing their update, this may breach the solicitation restraint.
Failure to update
Employees do not always rush to update their LinkedIn profile when they leave employment. They may be understandably reluctant to make public a redundancy or dismissal. In some cases this situation continues for lengthy periods, which can create confusion and fractured relationships with clients. In many cases, the ex-employee can be prompted to update their profile by a simple letter demanding that the employee cease misrepresenting the employer, but if they refuse to update, options for the employer are limited. LinkedIn has a complaints process available for user content that is unlawful or inaccurate, but no information is available about how long this process takes, and if LinkedIn refuses to take action, the ex-employer has little recourse.
Recommendations and endorsements
LinkedIn users can ‘endorse’ particular skills of individuals or write recommendations that appear on the individual’s profile page. Ex-employees may approach former colleaguesto provide recommendations. While these recommendations are less formal than traditional reference letters, they may still influence and potentially mislead future employers. An employer who relies on a misleading reference, and thereby suffers loss, may be able to claim damages against the issuer of the reference based on the tort of negligent misstatement, or under the misleading and deceptive conduct provisions of the Australian Consumer Law.
The potential for confi dential information leakage exists for all forms of social media, but the professional and business focus of LinkedIn makes it particularly susceptible to inadvertent disclosures. LinkedIn profiles can be linked to employee Twitter feeds, and LinkedIn automatic status updates contain information about recent activities of members on the site, such as who they have connected with, and information they have posted to LinkedIn groups. A combination of particular information could be enough to inadvertently reveal confidential information about a particular project, meeting or strategy.
Takeaways for employers
Employers cannot afford to ignore the benefits of social media, but embrace of technology should be balanced with a well-conceived plan for policing employee behaviour, and an exit strategy for employee departures. A social media policy is a good way to clarify the employer’s expectations around employee use of social media, including LinkedIn. Exit procedures should remind employees of their post-employment obligations, clarify that social media use will not fall outside of nonsolicitation restraints, and remind employees to promptly update their social media accounts once they have left the company.