Jennifer Cashman, Partner at Ronan Daly Jermyn covers the benefits and risks of social media as a tool for recruiting.

1. Brand & Talent via Social Media
‘Embrace but Beware’
2nd December 2015
Jennifer Cashman
Partner
Ronan Daly Jermyn Solicitors

2. SOCIAL MEDIA & THE EMPLOYMENT
RELATIONSHIP
PART 1
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3. SOCIAL MEDIA & THE EMPLOYMENT RELATIONSHIP
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4. OWNERSHIP OF ACCOUNTS AND CONTACTS
The question of “ownership” of LinkedIn contacts is
determined by many factors:
•Are there contractual clauses or a social media policy;
•Who created the account and why;
•Was it created prior to employment;
•Has the employee included the employer logo/brand;
•Are the contacts primarily personal or professional;
•LinkedIn’s own T&C provide that ownership of a LinkedIn
user account remains with the individual
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5. OWNERSHIP OF ACCOUNTS AND CONTACTS
Nautech Services Ltd –v- CSS Ltd & Others [2014]
•Decision of the Jersey Courts.
•2 ex employees took significant information from
Nautech databases for their competing company.
•Nautech obtained a Court Order in April 2013 preventing
the use of the info.
•Nautech believed the info had been used and brought an
action against CSS and the 3 employees.
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6. OWNERSHIP OF ACCOUNTS AND CONTACTS
Nautech Services Ltd –v- CSS Ltd & Others [2014] cont.
•Nautech and CSS operated in a niche area and contact
database was an integral part of business operation and
success.
•No publically available database – Nautech database of
customer contacts was confidential information belonging
to Nautech.
•CSS argued that such contact info could be found quite
easily via social media and the internet and that no
proprietary interest should be inferred on Nautech’s
behalf.
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7. OWNERSHIP OF ACCOUNTS AND CONTACTS
• Court rejected that argument due to the lack of a
centralised public resource. Database of client contacts
was also protected by Jersey’s copyright laws.
• Court refused to extend this copyright and
confidentiality protection to the employee’s LinkedIn
account.
• This was despite the fact that Nautech paid for the
employees to have a premium account and the
employee used his work email address to access his
LinkedIn account.
• Court based this limb of the decision on the LinkedIn
User Agreement.
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8. OWNERSHIP OF ACCOUNTS AND CONTACTS
Ardis Health, LLC v. Nankivell – US (2011)
•The court granted a company’s motion for injunctive relief
and ordered a former employee to return login, password
and other social media access information.
•The court held Ms. Nankivell was hired as a video and
social media producer and in that capacity maintained
websites, blogs, social media pages, passwords, and login
information for related companies.
•At the start of her employment, she signed an agreement
which provided that all work created or developed by her
“shall be the sole and exclusive property of [the plaintiff], in
whatever stage of development or completion.”
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9. OWNERSHIP OF ACCOUNTS AND CONTACTS
• The same agreement required her to return all
confidential information upon request.
• When she was terminated Ms. Nankivell refused to
return certain confidential information to the
companies. As a result they were unable to access
several of their online accounts and websites, to their
detriment.
• The court held that based on the agreement, “[i]t is
uncontested that plaintiffs own the rights to the Access
Information. Defendant’s unauthorized retention of the
information may therefore form the basis of a claim of
conversion.” For this reason, it held that Ms. Nankivell
must turn over the login, password and other access
information.
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10. OWNERSHIP OF ACCOUNTS AND CONTACTS
• Disputes governed by employment contract and
common law principles.
• No Irish case on this issue to date.
• LinkedIn t&c’s state that ownership is personal to
account holder
• LinkedIn accounts should be opened with Company
address.
• Use work photographs and dictate text of profile.
• Contacts should belong to employer.
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11. OWNERSHIP OF ACCOUNTS AND CONTACTS
Practical steps employers can take;
• Copy information to your organisation’s internal
contacts database;
• Restrictive Covenants;
• Technical changes;
• Profile settings.
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12. RESTRICTIVE COVENANTS
• Employers may have non-solicitation but not non-
dealing clause.
• Prevent employees from using business contacts
obtained through employment.
• Amend contracts and policies to take account of this.
• Content must be surrendered upon leaving.
• Password must be changed.
• Employees should not add work-related contacts to
personal social media accounts.
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13. SOCIAL MEDIA & THE
EMPLOYMENT RELATIONSHIP
PART 2
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14. RECRUITMENT
• Nothing to prevent an employer from accessing on-line
info.
• HOWEVER beware of Data Protection and Employment
Equality issues.
• If advertising role on-line, same issues arise.
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15. RECRUITMENT
• On line screening now a common practice in Ireland.
• Several US States have enacted legislation prohibiting
employers from requesting log in details from
candidates.
• April 2013 – UK’s first Youth Police and Crime
Commissioner resigned.
• Criticism of posts made by her on Twitter when she was
aged 14 to 16.
• The Police & Crime Commissioner responsible for hiring
Paris Brown was criticised for not carrying out checks on
social media before her appointment – will do so in
future.
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16. RECRUITMENT – DATA PROTECTION & EQUALITY
• Candidates should be advised that on line screening will
take place.
• What form will it take?
• How will information obtained be stored?
• Caution – discrimination issues.
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17. SOCIAL MEDIA & THE EMPLOYMENT
RELATIONSHIP
PART 3
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18. SOCIAL MEDIA POLICIES
The 4 C’s of Social Media Policies;
• Consider
• Create
• Communicate
• Comply
Consider – what you want to achieve; who will have access;
clearance for postings; training; responsibility for monitoring;
insurance; collective bargaining considerations.
Create – legal; PR; marketing and insurance advice.
Communicate – to all employees; signed acknowledgement.
Comply – encourage and monitor compliance.
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19. SOCIAL MEDIA POLICIES
• Define the scope – consider use of social media in and out of
working hours.
• Define social media broadly – to prevent policy becoming
outdated.
• Address work usage.
• Set out expectations of and definitions of
acceptable/unacceptable behaviour – no expectation of privacy.
• Cross reference to other policies.
• Address confidential/sensitive information.
• Reputation management.
• Ownership.
• Address consequences of breach.
• Training and communication.
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20. SUMMARY RECOMMENDATIONS
• Develop a Policy on internet/social media use.
• Clearly define the Organisation’s expectations re
acceptable/unacceptable behaviour.
• On line conduct should not differ from off line conduct
expectations.
• Draw up in consultation with staff.
• Communicate Policy.
• Have appropriate mechanisms for raising grievances.
• Consider how to reap the business benefits of social
media.
• Keep up to date with legal developments.
• Review and update policies on a regular basis.
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21. THANK YOU
For more information please contact
Jennifer Cashman
Partner and Head of Employment
Ronan Daly Jermyn
jennifer.cashman@rdj.ie
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