Ever since the days that employment law was referred to as
"master and servant" law, employees have owed various
common-law duties and, for some employees, fiduciary obligations to
their employer. These obligations take many forms, but key is that
an employee cannot misappropriate an employer's confidential or
proprietary information. In the days before social media, this was
fairly easy to describe. Generally speaking, an employee could not
print or email to himself a copy of the employer's customer
list, and then use that list to compete against the employer. But
what if that customer list is not a document, but is kept on a
Thankfully, as described by my colleague
Roland Hung in his
post, a recent UK decision (Whitmar Publications Limited) has upheld an
employer's request for an injunction where former employees
used an employer's contacts on a LinkedIn page to compete
against their former employer. This is one of the first decisions
to affirm a traditional principle to a new medium. That is, just as
an employee cannot print a customer list, take it home and use it
for competitive purposes against his/her former employee, an
employee cannot use an employer LinkedIn page with customer
contacts for the same purpose.
This is a very important "win" for employers. While
the case is not Canadian, it will be relied upon by those of us who
represent employers as authority that employer contacts on social
media are still confidential/proprietary information belonging to
the employer that cannot be misappropriated. It is important to
note that the case did not deal with an employer's interest in
an employee's personal LinkedIn account.
What are the takeaways for employers? Again, my colleague Roland
Hung notes the following.
In order to protect your LinkedIn network information, do the
Set clear guidelines regarding the privacy and confidentiality
of your LinkedIn networking information that is communicated to
anyone – employees or otherwise – with access to this
Through employment or training documents, ensure that all
employees are aware of the proprietary interest that you have in
all of your contact management software, which includes
Keep your company's LinkedIn groups and networking separate
from employee's personal LinkedIn profiles or groups.
Ensure that every employee who is responsible for maintaining
your LinkedIn databases and LinkedIn presence is doing so on your
premises, on your equipment and for compensation as part of his or
her job description.
This case is another example of why all employers should have a
social media policy. My earlier post sets out what to include in such a
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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