Monthly Archives: February 2014

Law Update: LinkedIn Contacts – Who Owns Them, You or Your Employee?

Scales of Justice 1

Like millions of employees, your sales and marketing staff may be using social media for business as well as personal contacts. Perhaps you have actively encouraged them to do this as part of their job. But at the end of the day, who owns the database or the information on it? This question recently became the subject of legal debate when the High Court addressed the status of LinkedIn contacts.

Our guest blogger, Andrea London of Rosenblatt Solicitors explains…

Almost all businesses now use some form of social media for their sales and marketing: they can be extremely effective and better still, are free. However, those same social media platforms – such as LinkedIn, Twitter and Facebook – are often also concurrently used on a personal basis by employees. As a result, the line between a ‘professional’ account and a ‘personal’ one easily becomes blurred. The question of ownership of the account, or more importantly the contacts contained in an account when an employee parts ways with his or her employer, has become a hotly contested legal one.

This issue of whether LinkedIn contacts created during a period of employment amounts to confidential information which belongs to the employer came before the High Court in the summer 2013. In very summarised terms, the case of Whitmar Publications v Gamage, Whitmar sought an injunction against several former employees, one of whom had maintained Whitmar’s LinkedIn company contacts during his employment and who then subsequently sought to use the information he had collated on Whitmar’s clients to help launch a rival business. The injunction sought was granted as an interim measure pending trial on the basis that it appeared to be a misuse of Whitmar’s confidential information and a breach of the implied duty of good faith. This decision (and a later one in a case involving Hays Specialist Recruitment) appears to indicate that English courts are very willing to consider the use made of a LinkedIn account by an employee during and after their employment as evidence of their breach of confidentiality and/or their reasonable restrictive covenants.

Whilst that may be the case, the question of ‘ownership’ of a LinkedIn account in such circumstances remains unhelpfully vague. It is LinkedIn’s view, as clarified in its user agreement, that ownership of a LinkedIn account is personal to the individual in whose name it is registered. This is regardless of which email address is used to register the account. Accordingly, businesses should do all they can at the outset to protect and clarify their position with their employees to avoid the risk of (expensive) disputes arising later on.

Some practical suggestions might include that you:

1. Ensure your company has a clear and effective Social Media Policy so that employees are clear on their own and the company’s position, and most importantly, what the company will do (both during and after termination of employment) if confidential company or client information gained during their employment is added to their personal accounts;

2. Ensure that your company’s LinkedIn account is not opened and then maintained (particularly if this is over a long period of time) by a sole individual;

3. Make it a requirement for employees to open a ‘company’ account for business clients using their work email address. From the outset, make it clear that it is the business which owns that particular account and all contacts and information in it. Ensure this account is regularly monitored and any costs/charges pertaining to the account are met by the company.

Legal Disclaimer: This article should not be taken as definitive legal advice on the subject covered. If you require legal advice on any of these matters please contact Andrea London of Rosenblatt Solicitors on 020 7955 1433 or email andreal@rosenblatt-law.co.uk

 

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Every Move They Make

Spy eye

As developments in technology continue to surge ahead, these days it’s never a great surprise to hear of new inventions designed to improve our everyday lives and which will soon be commonplace.

Every January, NGPLU’s (‘Non-Geek People Like Us’) get a glimpse of the latest advancements via news reports from the Consumer Electronics Show held every year in Las Vegas. As well as the usual unveiling of prototypes to tease and tempt (such enticement is known as ‘nerd lust’), this year’s highlights included televisions with concave curved screens (why?!) and a range of personal health gadgets.

One month on, a new technology just had its press launch, and depending on your point of view, will be greeted by NGPLUs with either enthusiasm or total horror.

The product in question is a new monitoring system designed to track employee movements throughout the working day. Just like a standard ID badge in appearance, the ‘Business Microscope’ device is loaded with sensors to record behaviour with the aim of improving employee and workplace efficiency. Hitachi explained that their invention will be able to judge the distance between people talking, and show “who talks to whom, how often, and how energetically”.

Just remember to leave your badge in a drawer next time you have a secret assignation in the stationery cupboard.

While I can’t be the only one to find Hitachi’s authoritarian language slightly chilling, I do see that if the price is right, this could be good news for bosses in some industries – though obviously, not so good for workers. Leaving aside the quip made by several wags that we should force all politicians to wear such badges, employers with, for example, pilfering problems in their warehouse, might see this as a good solution. However, thinking about this further, would the badges offer any more than CCTV cameras already in place?

It will be interesting to see where this – and its pricing – goes.

 

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Sales Recruitment: Some Thoughts – Part 1

Merry go Round-B&W and Yellow

If you’ve employed sales staff for any length of time, you will have learnt to expect some degree of churn in your team(s). Whether it’s because of poor performance, burn out, or the lure of a better bonus scheme, you will understand that it’s not in the nature of many reps (especially young ones) to stay put for very long. Anyone who has experienced the time-consuming and costly hassle of dealing with agencies, posting ads on job sites, sifting through CVs and interviewing, must surely have thought to themselves at some stage “I hope I don’t have to do this again for a long time.”

In a previous life I had a good run in permanent employment at several well-organised and profitable companies, at which a director’s signature was always needed for the weekly stationery order. So far, so corporate. However, not one ever put any restriction on recruitment spend: the assumed message being do whatever it takes to get prospects and customers serviced properly again and sales had better meet projections. The stationery v. recruitment paradox is not uncommon in the business world, and I still muse on the fact that a pack of 3M’s finest yellow stickies could be subject to stricter control than a series of ads in sits vac or agency fees – which in some months ran into thousands.

But this is the point. In most cases, there is financial pressure to fill a vacancy as quickly as possible. Predictably, suppliers are exploiting a need based on urgency – hence their astronomic charges (although the internet has driven down advertising rates) – which buyers will rarely query at the time. The recruitment industry (valued last year at £26.5 billion* – yes you read that correctly) thrives on the pressure to return staff levels to full strength.

Recruiting to fill any vacancy is, at best, about being in control and striking lucky; at worst seeing it as a task to be over and done with and making hasty decisions under pressure. Potentially more disastrous, is falling into the common trap of conceding that ‘bums on seats’ will do – followed by a dollop of bad luck.

In the end, recruitment mistakes will always take time and money to fix, sometimes long after the manager responsible has left – or been promoted. As I often have to remind business owners: “Recruit in haste, repent at leisure”.

* Source: Recruitment & Employment Confederation, 2012-13

 

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