To protect their hard-earned resources, many employers maintain nonsolicitation agreements with key employees. Generally, such agreements prohibit current and former employees from poaching the company’s clients and/or employees, particularly in the event an employee moves to a competitor. While such agreements may not be enforceable if they are overbroad or otherwise go beyond the applicable legal parameters (which vary from state to state), properly drafted nonsolicitation agreements can protect a company’s valuable assets – including confidential information, client base, and experienced employees.
But in today’s social media-dominated world, many employers – and employees – are unsure what constitutes solicitation. To be sure, if a former employee of XYZ company calls his old colleague, still employed at XYZ, and invites him to come interview for a position with his new employer, that is an example of classic solicitation. But what if the former employee merely “friend requests” his old colleague on Facebook, or invites him to connect on LinkedIn? Does that constitute solicitation?
With the rise of social media in recent years, courts have begun addressing these issues. In a decision issued August 7, 2017, an Illinois appellate court considered whether a former Bankers Life branch manager had violated his nonsolicitation agreement when he sent LinkedIn requests to several Bankers Life employees. The requests contained no information about the former employee’s new employer; they merely invited recipients to connect with him on LinkedIn. But Bankers Life complained that, because the employee had posted a job opening with his new employer on his LinkedIn page, the invitations constituted solicitation, as a recipient could view the job posting if he or she accepted the invitation. The court disagreed, holding that the LinkedIn invitations did not violate the applicable nonsolicitation agreement.
The Bankers Life decision is one of several recent cases addressing the interplay between LinkedIn and restrictive covenant agreements. In a 2014 case, for example, a Connecticut court held that an individual who had updated his LinkedIn profile to reflect a new job with a competitor of his former employer, and encouraged his contacts via LinkedIn post to “check out” a website he had created for the new employer, did not violate his nonsolicitation agreement with the former employer. Other decisions, however, have found certain social media activity to violate restrictive covenants.
Due to the relative youth of online social media, the impact of social media activity on restrictive covenants remains an emerging issue. If you have questions about the social media use of your employees or former employees, please contact PMP.