You’re Stealing Our Contacts!

Posted on September 20, 2012. Filed under: Uncategorized |

A Manager of a recruitment business who is sick of consultants who leave the company and ‘take’ contacts with them via LinkedIn recently asked me what they could do to prevent this.

This is a pretty common question and an understandable concern, not just for Recruitment companies but for any organisation that is encouraging its sales staff to use LinkedIn in their role.

For what it is worth my thoughts on this are as follows;

This is what you can do

* When you recruit a new consultant or sales person ask them to download to a spreadsheet a list of all of their first tier connections (this is done via the contacts menu – see below right). Declare in a signed document that you agree that these connections are ‘owned’ by the consultant.
* Encourage, support and train your consultants to use LinkedIn for both client and candidate generation purposes during normal working hours.
* When the consultant resigns ask them to repeat the process of downloading all of their 1st tier connections onto a spreadsheet.
* Insist that all connections made whilst in the employ of the company are disconnected with (spreadsheet 2 minus spreadsheet 1). Ensure this is done to your satisfaction before the consultant leaves.
* Ensure that the above is clearly stated in their contract of employment.

This is what you should do

* Accept that connections are very different from contacts and relationships, a connection may be just a gateway to other users and not necessarily a relationship that in any way threatens the company.
* Encourage, support and train your consultants to use LinkedIn for both client and candidate generation purposes. In other words, get the most out of their LinkedIn activities as a company whilst they are in your employ.
* Encourage all consultants to ask their connections to follow the company and incentivise clients and candidates to follow the company page.
* Ensure that any restrictive covenants in place are explicit in their definition of ‘contact’ including reference to LinkedIn messages. Make it very clear in exit interview that contact via social media and LinkedIn during the restricted period is a breach of contract.
* Wish them well and stay on good terms.

LinkedIn are very clear in that they state that an individuals connections always belong to them, this is irrespective of when that connection was made or what type of account upgrade or corporate licence they are operating under.

If anyone tries to persuade you that the infamous Hays vs Ions case is a precedent that protects you then think again. My understanding of the circumstances of that case was that there was a clear audit trail of evidence showing that contacts were taken from the company’s database to the individuals new company database via LinkedIn. This is very different to the vast majority of situations.

I know this is a difficult and frustrating issue but the bottom line is that good quality consultants & sales people build strong lasting relationships with clients and candidates. They did before LinkedIn and they still do now! Restrictive covenants aside, you really can’t prevent those relationships from continuing after they leave your company.

If you really want to ensure security and retention of client contacts then perhaps you should employ lower quality consultants….then your problem is solved!

Please note, I am not a lawyer….nor do I wish to be so any actions you undertake should always be checked with your qualified legal advisors first.


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5 Responses to “You’re Stealing Our Contacts!”

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I fully appreciate the value of LinkedIn in finding candidates and clients alike, but this just reiterates how important it is for the company to insist that their consultants store candidate data and still use CV’s. I think we are all aware that LinkedIn has potentially given us access to a large number of new candidates, but with the connections belonging to the consultants in this way, the competitive advantage also lies in the hands of the consultants, LinkedIn has effectively increased harvesting of CV’s.

Useful tip, thanks Mark – have passed this on to about 40 people I was presenting to the other night as directly relevant to a conversation we had. Hope life treating you well…

I thought I would make a comment from an Employment Law point of view and hopefully I wont complicate issues any further than necessary. It is entirely correct that there is not a lot of tested cases or authorities on the issue of the ownership of social media contacts. This being said the degree to which this can be assessed will depend on the circumstances.

One case of note however is the case of Hays Specialist Recruitment (Holdings) Limited and Another v Ions and Another [2008] EWHC 745 – this concerned the high court ordering disclosure of company contacts (confidential information) that had been migrated over to the employees Linkedin account. Specifically, Hays alleged that Mr Ions had deliberately migrated details of his business contacts from Hays’ confidential database to his personal account at LinkedIn, by uploading those contacts so that LinkedIn could invite the contacts by e-mail to join his network. Mr Ions argued that the migration was carried out with Hays’ consent (since it had encouraged him to join LinkedIn) and that, once the business contact had accepted the invitation, the information ceased to be confidential as it could be seen by all Mr Ions’ contacts. The High Court held that Hays had reasonable grounds for considering that it might have a claim, and ordered pre-action disclosure of certain documents.

Another case was Pennwell Publishing (UK) Ltd v Ornstein [2007] IRLR 700. In this case, the High Court held that where an employee (a journalist) created and kept all his contacts on his employer’s computer system, that database or list of information belonged to the employer. This included personal contacts and business contacts which the employee had prior to joining the employer. If the employee had kept a separate list of contacts and selectively copied those which he regarded as long-term or journalistic contacts (as opposed to those which would also be useful to the competing business he was setting up) and maintained them on his own computer, he would have been able to use them.

This case is interesting because of the debate over whether, given the constraints imposed by the employer, LinkedIn could be described as an extension of the employer’s computer system. This is not a point which has yet been tested and I am not entirely sure this in reality could be argued successfully. However, to the extent that the employer has control over the LinkedIn account, I think that a court would be likely to consider that contacts which appeared as the employee’s contacts on his employer-controlled LinkedIn account were the property of the employer. I would always recommend that where LinkedIn is used as a business tool in any circumstances, there are express obligations imposed on the employees contained in their contract of employment.

Thanks for your really useful input (although a name would be helpful!). As I stated the Ions vs Hays case is uniquely different and was obviously a clear case of stealing contacts from the company database to his own database via LinkedIn. This is very different from the majority of cases in my opinion.
I had not heard of the Pennwell case. On the face of it the ruling seems bizarre (then again the law is an ass!) and you don’t state whether these were LinkedIn contacts….I suspect they were not. LinkedIn contacts are not ‘held’ on any computer (unless downloaded) they are accessed on the web via any computer, anywhere (or phone, ipad etc). As to the point of an employer having ‘control’ over the LinkedIn account the question I would have is what constitutes control?

My name is Gary Armstrong – apologies!

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