LinkedIn: A Violation of An Employee’s Non-Compete?

Here's one for you:

Employers are being advised to specify (in non-solicitation agreements) that communications made through an online social networking website such as LinkedIn, Facebook, etc. constitute a violation of the employment contract.

Wait, there’s more.

They’re also being advised to include a social media paragraph in non-competes that specifically addresses the use of computers and social media. The paragraph should state, among many other things limiting social media involvement, the following:

The employee is not permitted to have a webpage or website on the Internet for business purposes through a provider without prior written approval from the employer. This includes social networking sites like Linked-In for business purposes. The employee should agree that mentioning his or her affiliation or employment with the employer on these types of sites without prior written approval of the content by the employer is not permitted. If the employee is permitted to connect with clients via LinkedIn, they should be required to set their settings so that other users cannot see their contacts.

Read all the limitations here.

What does this mean for the sourcing industry going forward?

Is this advice, as one alarmed commenter stated, "draconian and ultimately untenable”?

Or is the legal ice thinning for using social media for recruiting?

Comment by Joseph P. Murphy on February 7, 2011 at 11:48am: I am not a lawyer and this is not legal advice.

But with some 70 million users, thats is a lot of profiles to dismantle.

Begs to ask what % of the working population is covered with an employment contract?

What adminstrative burden for compliance/audit would that create?

Would that language extend to how business cards are handed out in the analog world?

Resume posting on job boards might fall into the same category.

Oh No, a whole industry will collapse and the LinkedIn IPO will never happen!

Comment by Martin H.Snyder on February 7, 2011 at 11:49am: I dont see any legal problems for third-parties (e.g. not parties to any agreement with a company) to do whatever they wish in re: social media.   I don't see LinkedIn as "social", but thats another story.

In regards to an employment contract, I can see certain provisions having force, but so few employees are employed other than "at-will" , its a very narrow problem, and those fortunate enough to have an employment contract are getting some benefit for the restrcitions that they agree to.

I also don't see any employer getting very far in restricting an at-will employee from saying whatever they wish (as long as it's opinion, truthful, and not trade-secrets) although you can be fired for any reason or no reason except reasons that go against public policy, and the First Amendment has been held to be such a public policy.

As with many of these cases, the company trying to use the legal system as a private tool for its own purposes is almost always going to come out on the wrong side PR wise of any overreach.   I would not be very worried that Social Media will be outlawed anytime soon for workers.

Comment by Louise Goodman on February 7, 2011 at 11:58am: hmmmm well any company that focuses on trying not to lose it's employees by forbidding them to engage on social media will probably have a high attrition rate regardless of whether their employees engage on LinkedIn or not!

It seems to me that this is really not a non-compete issue but a desperate attempt to keep employees from networking with people that could result in them getting a new jobs. If a company is not willing to invest in their employees beyond an at-will contract I wonder how they can legally stop them from being available to other job opportunities. I'm not a legal expert so will be interested to see how this plays out.

There are costs to being able to fire your employees for any or no reason, companies can't have it both ways. Besides, happy, fulfilled employees who are fairly rewarded stay with their companies

Comment by James Todd on February 7, 2011 at 1:03pm: Many employers, especially in the recruiting industry believe all professional contacts aquired by an employee while working for them are the property of the company. Because of the challenge of severabilty with sites like Linkedin I can see where those same companies would place restrictions on social media to preempt issues in the future. Non-Compete,Confidentiality and non solicitation agreements are fairly common and I am pretty sure that if a company wanted to make a former employees life painful they could use the contacts retained via linkedin as a breach of most boilerplate agreements. I don't restrict linkedin at my company and don't even use restrictive covenants for my employees, but still I can see the reasoning of those that do.

Comment by Thomas on February 7, 2011 at 1:09pm: I'm curious as to what a "typical" emploment contract or non-solicitation in the Recruiting arena looks like that covers this. Does anyone feel like sharing such a document if it exists? It seems to me that if an employer copmpensates an employee and part of that pays for constructing and maintaining a LinkedIn or any other socail media database, shouldn't the employer have this if the employee leaves -- either on their own or are terminated? It seems that intellectual property comes into play here. BTW, I am not an attorney either.

Comment by Karen Lynn on February 7, 2011 at 10:43pm: I don't see it holding up either Jeff, but corporations got themselves legally identified as persons recently and companies are patenting life in the form of seeds, etc. so... well then, anything is possible I guess.

But here's the thing...Boomer business is trying to hold on to old, outmoded paradigms of ownership from a past industrialized era with these sorts of lame constraints. I see this as desperate scramble to gain super-control over their image in an age of free media. This motive is being hidden beneath a concept most boomers can get behind - trade secrets, company property, and the like are the ideals the a boomer nation used to strengthen modern capitalism.

Younger millennials flat out aren't buying into those ideals - they simply don't think in those terms at all. A fresh paradigm of practice may force companies to choose between top talent and the status quo of business in usual ways. Millennials have maneuvered around music sharing and are redefining the publishing industry as we speak. I trust they will find away to protect their public voice and business relationships as well.

I think the idea of owning a client or customer (list?) is futile at this point.

Comment by Thomas on February 8, 2011 at 10:07am: So your saying that if a company pays me to recruit and build a client relationship [data base], and they task me to do this for this pay, if I leave I can take this information with me and they have no claim to this information? How about a college professor who on his employer's time develops a patentable product? Who owns it if the professor leaves the job? For some businesses in the digital age, the "list" is there business an dto lose control of it would harm their business. I don't have an easy answer, I'm just keeping this conversation going.

Comment by Peter Dube on February 8, 2011 at 2:42pm: companies that wholesale restrict social media are fantastic sources for great companies to attract top talent that will appreciate an employer that respects their intelligence and judgement.

Comment by Karen Lynn on February 8, 2011 at 9:43pm: Hey Thomas ~ so glad you want to keep it going with some super great questions. So I'll wax on a bit... Let's start with your first line which I think holds a little jewel.

So your saying that if a company pays me to recruit and build a client relationship [data base], and they task me to do this for this pay, if I leave I can take this information with me and they have no claim to
this information?

Well you can't take the database (information) but you can take the relationships (social)? While companies may lay claim to information & data, they can't lay claim to the human relationships and connections formed in proximity to that information. It's always been like that. Lots of customers follow their favorite salesman around within an industry. Companies profit from this kind of customer loyalty and hire salesmen who can achieve exactly that. So I just find it pompous and unrealistic for companies to pretend that relationships and connections are the same thing as data and information. It's Not.

Social networking isn't about data and information at all, but in many ways it is far more powerful. Social networking, especially like that of LinkedIn, exposes the human connections that link up data and information. It does not intend to expose the information or data itself. Post-modern business is increasingly more dependent of these connections and links than on the actual information (which is seriously easy to access now anyway). Digitalized social networking simply makes it way easier to maintain those relationships and PUBLICLY exposes many previously hidden but vital connections. That must be pretty scary for industries who have not been paying attention to the value of customers and employees. Hence, strategies and tactics like the one mentioned in this post.

Listen, any business who thinks their 'list' is at the heart of their business deserves to be harmed in this digital

Comment by Karen Lynn on February 8, 2011 at 9:47pm: There was one more point to the above but it got cut off somehow. I'll wait to see if it appears, or try to sum it up later so it concludes in a sense making way. Ok?

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