Tag Archives: Restraints of Trade

Linked Out – recruiters forced to delete Linkedin contacts


I’m generally a pretty easy-going chap but there are some things, I’ll admit, that make my blood boil.  Technology that won’t do my bidding or listen to reason and insist on freezing no matter how many times I press CTRL / ALT / DELETE.  David Bentley at Spurs.  Pretty much anything to do with Spurs.  People speeding up in the lane beside me when I’m trying to politely indicate and change lanes, blocking my manoeuvre.  Trying to spell manoeuvre properly before resorting to spell check.

Quite a few things, actually.

But one thing in particular really gets my goat:  Employers who believe that the way to retain and develop staff and protect their business’s interests is to watch, monitor, scrutinise and basically harass their employees until they have created an environment of pure fear and paranoia where nobody dares express an original thought or new idea.

So I was pretty miffed when I bumped into a recruiter friend earlier this week who recently changed employers and is now working for a new recruitment firm, but in the same type of role they occupied previously.  After devoting a sizeable chunk of their career to the firm in question, they decided that the time was right for a new challenge, so they resigned.

A couple of strange things happened next.  Firstly, they were required to work out their notice rather than go on gardening leave.  Fair enough, this is the company’s prerogative as they are still paying that employee through the notice period so can essentially require them to do whatever they wish.  But because they knew this person was leaving for a competitor they spent the next month watching like a hawk, monitoring every little movement and action.  I mean what is the point?  You know they won’t be undertaking  any work of real value to your business, so the only reason I can see for this course of action is to somehow deter other staff members from resigning, because they can see how uncomfortable they will be made to feel.

Way to go with your retention strategy and talent management there guys.

But the other thing that happened is what really made my blood boil.  They were presented with the restrictive covenant clause from their employment contract and underneath the actual clause, they had written their own interpretation of the clause and how it related and pertained to social media connections.  The argument presented was that any Linkedin or Facebook connections or friends that were also contacts within the company’s database were in fact relationships owned by the employer and not the employee, at which point they were told to delete those connections there and then.


And being a sweet-natured employee not wishing to rock the boat, this person complied and proceeded to delete their Linkedin connections that duplicated those in the company’s database.

Can you believe this?

What is interesting to note in this debate is that there is no legislation or case law setting a precedent around who owns your Linkedin and Facebook connections.  So there is really no reason why anyone should comply with this kind of directive.  I certainly wouldn’t.

In a US case earlier this year TEKsystems, Inc. vs. Hammernick et al this issue reached the courts for the first time.  An employee of TEKsystems left for a rival IT recruitment firm and sent messages through Linkedin to 16 IT contractors to see if they were looking for work and would they like to come see her in her new company and see what was available in the market.  These 16 contractors were all currently on the books of TEKsystems and she knew of them through her previous work at that firm.

In fact here is an example of one of the approaches made:


Hey! Let me know if you are still looking for opportunities! I would love to have come visit my new office and hear about some of the stuff we are working on!

Let me know your thoughts!


Hi Brelyn,

Indeed I am still looking. I have time, though!

Lets get together. Where are you working these days? Your profile still has you working at TEK Systems. BTW – my email address is …. if you would prefer the non-Linkedln route.



I should also mention that the over-use of exclamation marks is another thing that annoys me, but it seems to be an affliction besetting many a recruiter out there.  Add to that she is American and…well…!!!!!!

Anyway, in my opinion this kind of activity is clearly breaching the non-solicitation clause of her contract and I fully expect the employer to be found in favour in this case (the actual hearing and outcome isn’t until August 2011).  The fact she used the medium of Linkedin, rather than sending an e-mail, making a phone call, or stalking them on the way home, doesn’t stop it from being an attempt to solicit business.

But what is starkly different here to our recent situation in New Zealand, is that this was positive, active breaching of the restrictive covenants.  By forcing someone to delete connections you are assuming they will use that information to damage the company’s best interests.  But what if you just wanted to remain in contact to share ideas and information, or had developed a social relationship as well as a business relationship?  No employer has jurisdiction over that kind of behaviour.

What’s more – how about this?  What if all of the social media connections had been made during the employee’s own time, on their own computer at home?  Why would any employer have any say over those relationships?  And just because Linkedin has become the tool used for business networking, where is it written that social connections on that medium alone must be for business reasons only?

For recruitment company managers and owners worried about the recent trends in social media and how it can be “controlled” in their business, there are some helpful pointers here which basically covers:

  • Implementing a Social Media Policy – which I believe to be a good idea but it must be a fluid and ever-changing policy that can move and adapt with the times and is developed by consultation with everyone in the business in a collaborative way
  • Placing resigning employees on gardening leave – a no-brainer for me, especially in recruitment, but clearly not a sentiment shared by everyone
  • Specifically referring to Linkedin and other social media in the Restrictive Covenants of the employment contract – if I saw something like this in a contract presented to me I would leave the room laughing my head off


What employers need to grasp is that in the modern business world it is no longer efficient or effective to protect the assets of your business through command and control tactics.  We live in a world where so much information is so readily available that it is entirely pointless to try and physically prevent ex-employees from tapping into networks and contacts made during their previous employment – THIS IS HOW BUSINESS IS DONE NOWADAYS.

What employers need to be doing is creating vibrant, energised and positive workplaces that inspire collaboration and open communication and thereby engender the trust, respect and loyalty of your employees.  Don’t force them to stay working for you.  Make them want to.

That, for me, is a far more positive course of action than trying to police and control employees’ social media activities.