A law firm is warning HR professionals of the risk of employees trying to evade their non-solicitation restrictions by using social media such as LinkedIn, Facebook and Twitter and email accounts such as Outlook and Gmail.  

According to Moore Blatch, many HR directors are eitherunaware of the issues or are not tackling it. The issue is whether contacts and followers on social media sites such as LinkedIn, Facebook and Twitter are considered to be confidential information belonging to the employer or to the employee. Employees will often argue that their contacts acquired over time during employment have become personal and/or are in the “public domain” and are not protected by confidentiality or covered by restrictive covenants. 

Employees who quit sometimes upload email addresses to their LinkedIn from their employer’s computer system with a view to using them after employment has ceased. The courts will prevent misuse of information by injunction but only if the business’s right to protect that information is clear and understood. There is an urgent need to take control of employees’ use of social media to protect the business and prevent wholesale solicitation of customers by employees who take their LinkedIn, Twitter or Facebook accounts with them when they leave.

Paul Whitaker, partner and head of dispute resolution at Moore Blatch, gives the following advice: Ensure restrictive covenants make specific reference to social media contacts. The contract of employment should oblige an outgoing employee to co-operate in handing over social media accounts, passwords, etc. and/or to delete contacts made in the course of employment for the purpose of promoting the employer’s business. Given that a social media account belongs to the person who set it up, and that in the absence of a clear policy the employee owns the account, controls the password and arguably the associated contacts, the employer should open the social media account and set and control the password, rather than leave it to the employee. If there are appropriate policies and contracts in place the court is much more likely to protect confidential information from being misused through social media, but a business that doesn’t have such protection in place is vulnerable.