LinkedIn and the Law – Some Raw Truths for Employer and Employee

May 25, 2016
Nigel Cliffe
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It’s about time the truth was out.

I am writing this blog because I am frustrated by supposedly knowledgeable legal experts telling us about the ins and outs of the workings of LinkedIn when it comes to the relationship between employee and employer on this LinkedIn social media platform. 

For some time I have read opinions from so-called legal experts that have been formed on a clear lack of working knowledge around the subject of LinkedIn and how it really works.

So here goes . . . 

To put this into context bear with me for a moment and please go along with the assumption that many people are waking up to the positive impact of business to business social media, and of LinkedIn in particular.

The two key benefits of being active on LinkedIn are:

1) Lead Generation

2) Thought Leadership

So it is no surprise that when people are employed in a business development role there is a key question raised when a person’s employment comes to an end.

Who do their connections belong to?”

Let me also make the assumption that very few companies take the trouble to agree specific terms around the use of social media when their employment contract is entered into.  If an agreement has signed undertakings then much of what I write here is a waste of your time.  For those with no such undertakings, read on.

As a practitioner in the art of LinkedIn I have learned to appreciate that there are two categories of C-suite leaders in the world, those that ‘get’ social media and those that don’t. Those that get it may not fully understand it but at least they have an appreciation of its impact in the world of communications. For those that don’t, you probably aren’t even reading this.

Let me first start with who owns a LinkedIn account. 

LinkedIn accounts are owned by individuals who LinkedIn calls ‘Members’.  A person who registers a LinkedIn account is therefore a member.  People who do not have a LinkedIn account but who might visit LinkedIn.com are simply called ‘Visitors’.  Interestingly LinkedIn’s terms and conditions apply to both parties who might visit their website.

Hereby hangs the first important truth. Individuals own LinkedIn accounts, companies do not.

In a recent learned article I read the following advice:

Make sure that the details on the [person’s] LinkedIn account show that this is a company and not an individual account.

This advice is misleading at best and quite simply wrong.  It is not possible for a company to own an account, although it is possible for a company to have a Company Page. But this is not the point in question.

It is against LinkedIn’s terms and conditions to portray an account as a company and not as a person. Despite you and I both seeing companies represented as people on LinkedIn, technically this is against their terms and conditions. Quite why LinkedIn do not clampdown on this activity might be the subject of a later debate

So, let’s just run through what the typical problem is here.

Jack and Jill are both getting on with their lives developing LinkedIn connections in the passage of their existing employment objectives.  At one time they move from an existing company to join the employment of a new organisation. They take with them their experience and connections and start their new role. At that point in time the new employer is keen to benefit from the experience and connections that that person has made thus far in life. It will no doubt be the case that both Jack and Jill will continue to add connections whilst fulfilling their duties for their new employer.

Through the passage of time Jack and Jill now feel that their career might develop further with a new employer. Who owns the connections made during the period of time with the present employer? The answer is really quite simple:

Jack and Jill own those connections themselves.

Why is it then that employers are often aggrieved by the development of connections which they feel they should have some right to own simply because they paid the wage bill? I have to say that in the world we now know this is such an old-fashioned outlook. The patterns of employment are changing rapidly into those of virtual teams and projects. Very few of the next generation of employees will work for significant lengths of time with one employer, as has been the case in the past.  Any attempt to own the connections and contacts of an individual by an employer will increasingly point to an out-dated company with an outdated philosophy.

In a recent article I read written by a legal expert, these points were made to suggest to an employer that they should control the connections of an employee:

i) Ensure that the company contacts are saved only to LinkedIn accounts that bear your organisation’s email address and logo.

ii) Make sure that the details on the LinkedIn accounts show that this is a company and not an individual account.

On both accounts this advice is wrong and against LinkedIn’s own terms and conditions.

So might the other way round to this be to tie employees into a tighter employment contract that limits their use of LinkedIn?

Include wording in your staff handbook that the company LinkedIn accounts are for company use only and that any misuse during employment (e.g. extracting client details for competitive activities post-employment) is a disciplinary offence that may, in certain cases, be treated as gross misconduct?

Or

Secure an undertaking from the individual that the accounts will be used for company purposes only and not for personal use?

Or

Make it clear that on termination of employment the individual ceases to have the right to use their LinkedIn account and should delete and not extract, copy or retain any confidential information obtained from it?

Or

Require employees to sign a warranty when they leave that they have not extracted, copied or retained any client information via LinkedIn?

Or

Ensure that the password details for the individual’s access to the LinkedIn accounts are provided on request/termination?

What right-minded person would agree to such restrictive covenants?

If you find yourself about to enter a job role without having checked these matters in advance, I would say think again. What might you be letting yourself in for?

So employers, what is the answer? I would suggest it is this:

The integrity of your brand is no longer your logo. It is no longer the advertising slogans of the past, which could go by without challenge.

Your brand is represented by every single touch point that your customer has with your organisation.

Your employees are your brand ambassadors. 

For the period of time you employ them they should be provided with the richest opportunity to put their best foot forward for your brand. By being proactive on LinkedIn they have the opportunity multiple times a day to wear that brand through thought leadership and association with and through your organization’s beliefs and thoughts that resonate with your objectives. Your employees simply have to be represented on social media channels; this is where your prospects and existing customers expect to find them. I’m sure you get that by now?

A more positive engagement with your employees is that of guided use to encourage the right type of participation on social media. How can your employee’s performance be improved by intelligent engagement on business-to-business social media channels? What could be the collective benefit of all your existing employees telling their personal stories of success and achievement whilst in your employment? The power of these stories could be incalculable in extending the reach of your corporate brand. Just check out a simple Google search if you need convincing.

In closing I offer some intelligent tips to both employers and employees on the best practice use of LinkedIn:

1) Ensure that your contact details you display to 1st degree connections are rich and accurate. Make sure your primary email address is that which you wish to be contacted for business purposes and that the telephone number displayed is the one you would wish to be called on.

2) Have more than one email account added to your LinkedIn account. This means that you will be able to retrieve your account in the event of a problem.

3) Regularly download your LinkedIn contacts as a CSV file and ensure that those that are relevant to the company’s business are also identified on the company’s CRM system.

4) Have a totally professional LinkedIn profile at all times. Do not let yourself be pushed into Facebook-like communication.

I asked many senior executives if they would turn up to a networking event in torn jeans and T-shirt. Of course not, they exclaimed.  Then take a look at your LinkedIn profile my friend. This place is increasingly the starting point for a new relationship and many people are passing your door with a poor impression of you without you even knowing…

Nigel is a Director of Think Global Growth,delivering training and strategic advice to corporates, education, charities and government.