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Social media ban for departing workers.

Social media is a powerful networking tool. Workers rushing to update their social media profiles about a new job are being blocked by legal clauses in employment contracts.

 

Employers are waking up to the risk of employees poaching clients using social media and a few have started temporarily banning departing workers from updating their LinkedIn and Facebook profiles.

The restrictions are found in restraint of trade clauses preventing employees from alerting clients to their impending departure, including on social media.

Employment lawyer Bronwen Newcombe of the firm Davenports Law recently advised a client whose terms of employment stopped him from updating LinkedIn about his career plans for three months after leaving his job.

The man did not plan to directly approach clients but hoped that clients would approach him with contract work if he announced his resignation on his personal LinkedIn account.

Newcombe said she had to advise him against it, because updating LinkedIn was exactly the kind of thing his contract clause was designed to prevent.

"There was a clause in the agreement ... restraining him from contacting the employer's customers, including updating his social media profiles," says Newcombe.

"The idea is they have a three-month grace period to affirm their relationships."

Newcombe has seen a few similar clauses as employers increasingly police the line between private and workplace social media postings.

But she said it was still far too common for firms to have no clear social media policies.

Preferably the rules would be located in workplace policies so they could be updated regularly, without changing people's contracts, she said.

Setting out the expectations of behaviour and what happens when the employment ends gives an employer more options if, for example, a worker is over-using Facebook at work or tries to poach a contact list.

"A client last week has a star performer who is continually on social media and if there had been a policy upfront, there would be more tools now for the employer to handle it," Newcombe said.

The line between personal and professional accounts could be blurry, she said.

"Some industries use LinkedIn as an online relationship manager tool and in that case there is a strong argument that that information is proprietary to the employer.

"It is a business tool used in the workplace, so if the employer has a clear policy saying that (that's how they use it) then all that information would be the confidential information of the employer."

"Say if an employer requires you to have an account for work [a policy] could say that, if you leave, then all those contacts and that account stays with us. That is really clear and then the employee knows that, if they want a personal account to use as an online CV, they should start a personal one." Newcombe said.

Facebook remained the setting for most "denigration" or "disrepute"-type social media employment issues, she said.

"Facebook tends to be people venting and making disparaging comments."

"It is mostly a personal social media site and as long a the person isn't friends with their employer and the page is private it should all be private information," she said.

"But even if the employee ticks all the right (private) boxes but still lets rip on their Facebook page, if it comes out the attention of the employer that could result in consequences."

Even private social media activity can be patrolled by employers if it creates workplace health and safety issues, Newcombe said.

In a 2010 decision, Adams v Wellington Free Ambulance Service, the Employment Relations Authority ruled an employee could be fired after she lambasted a colleague after-hours on Facebook over something that had happened at work.

 

This article was featured on Stuff.co.nz.

For further Employment Law advice, get in touch with Bronwen and the Employment Law team.

bronwen@davenportslaw.co.nz | 09 883 4420

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