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The Silencing of the LinkedIn Lambs

By May 31, 20123 Comments

Did you know that changing jobs and updating your LinkedIn profile to reflect your new employer’s name, your new title, or your new contact information is tantamount to breaching non-solicitation clauses in your Restraint of Trade?


Well ok then, calm down now, it isn’t.  Not yet anyway, and never should be in my opinion.  But there are currently two quite prominent cases of this exact argument being forcibly pushed forward by two well-known recruitment businesses in Auckland, both of who recently lost key members of staff to competing agencies.

Things like this used to be as black and white as the employment agreements they were written down on.  If a recruiter left one firm for another, they had to behave themselves for a period of usually 3 to 6 months and not directly solicit either the business of their previous employer’s clients, nor entice previous colleagues away to join their new firm.  As a recruitment company owner myself then I think this is fair enough, and would encourage all recruiters to act ethically and professionally in adhering to the terms of their Restraint.  But there is no doubt that the onset of social media in recruitment has blurred the lines of ethical behaviour to ever greater levels.

I can understand the frustration (and, worryingly, desperation) of these firms pursuing such action, but will someone please tell them to just let it go and stop wasting their time and money?  We live in a different kind of world now, both at home and at work, with whole new levels of connectedness and communication.  The way we used to work with clients, and engage with staff members, has changed radically.  Much of the time it is for the better.  Our services have been able to quickly spread out beyond the geographic boundaries of New Zealand through the building of online relationships.  Technology has been a great enabler for us, to market ourselves, reach candidates, and do business on the move.  But there are, of course, a few downsides too, not least of which is the increasing difficulty for recruitment firms to protect their Intellectual Property.

But let’s get real.  You can’t honestly expect to be able to force an ex-employee to delete a LinkedIn account entirely, or refrain from updating their title and employer details on LinkedIn, under the ruse that they would otherwise be breaching non-solicitation clauses.  Where would it stop?  I mean, who is to say this should only apply to LinkedIn?  I know it is “accepted wisdom” that LinkedIn is for business, Facebook is for play, and Twitter is for…errr…relaying what you had for lunch engaging with a mixture of both…but there is no rule book that states this.  A court upholding this argument and restraining innocent and indirect activity on your own LinkedIn profile would have to apply in the same way to Facebook and Twitter, both tools being used increasingly for business communications too (not that we’d know anything about that).  Imagine being told you’ve breached your Restraint by saying on Facebook that you’re excited about your first day at your new job.  Or retweeting your new boss’s tweet proclaiming their happiness at your joining their team.

What about the ultra-subtle activity of simply looking at people’s profiles on LinkedIn and doing nothing else, which in itself encourages them to react and open a discussion?  I know an IT recruiter who does this all the time, very successfully, as a more softly-softly approach to the direct headhunt.  Would you have that banned too?  It’s like telling an ex-employee that they can still pop down to their local masonic lodge but that, after the awkward handshakes, you must stand in the corner with your drink, staring at the wall, avoiding eye contact and refusing to acknowledge the confused approaches of your previous friends and business contacts.

It’s the same thing.  Don’t persecute ex-employees with an old school response to a new world phenomenon.  Contract law must simply keep pace with the rate of innovation at LinkedIn and others, whose constant round of updates and improvements mean users can find themselves broadcasting updates and profile changes in ever broader ways than they even realised possible beforehand.  This new threat to company owners is spreading fast.  See this article which relates the story of a UK recruitment firm recently experiencing the exact same problem as the other two right now in Auckland.

The only way to enforce such an argument is to clearly state the company’s stance towards LinkedIn, Facebook, Twitter and other channels in a social media policy,  with mentions of LinkedIn use post-employment explicitly referred to in the employment agreement.  Hays have done this quite successfully by denying staff access to LinkedIn at work unless they sign a waiver promising to delete their account should they quit, something which I covered with great opprobrium almost 2 years ago!

But let’s get real here.  The real time, money and focus should be on embracing social media in as effective a way as possible.  Celebrate it’s use, have fun with it, try out new things, and look outwards not inwards.  Create a culture that engenders trust and loyalty and open communication.  Sadly, people will always leave, but not very often if you get this right.  That, for me, is where your energies should lie, not in the fruitless pursuit of enforcing archaic beliefs into a new world order.

Jonathan Rice

Director of New Zealand rec-to-rec firm Rice & Co, co-founder of freelance recruiter platform JOYN, and people-centric technology firm superHUMAN Software. Recruitment innovator, agitator and frustrated idealist, father of two, husband of one, and lover of all things Arsenal and crafty beer.


  • Johan Ferrari says:

    Immagine a recruitment company who pays to upgraded a linkedin account to assist the recruiter in his/her job. Who owns the account???? Not always black and white. On an other note if you as an employee are happy to sign a contract full of archaic beliefs …. Maybe we need to set the rules at the beginning of a employment relationship and not when the >>> hit the fan…  When was the last time you updated your employment agreement….

  • Stewart Farr says:

    Many moons ago i got advice from the ero in regards to restraint of trade. basically they said to me that it would be thrown out in an nz court of law due to nz small size and lack of skilled workers.
    so while it cause conflick with nda’s are you sure people are being prosecuted in nz for jumping ship?

  • Fiona Harland says:

    Belated congrats on this post ..exit interviews might just allow a conversation to understand why some one left … if its for the right reasons then on a positive note maybe they can be enticed back with greater skill and resources and a larger network !!