April 19, 2018
Social media sites such as Facebook and LinkedIn are commonly used by employees to provide updates about their professional careers and business activities. When posting about such things, most people probably don’t think about whether they might be breaching a contract they made with a previous employer. They should.
There have recently been several cases filed by former employers against ex-employees, alleging that the employees have violated a non-competition agreement or non-solicitation agreement through their social media posts. In one such case, filed in Minnesota, an employee who had left her employer to work for a competitor filed a post on LinkedIn about her new job, inviting people in her social network to contact her for a “quote,” telling them that her new company was the “best,” and inviting them to “connect” with her. The court held that this “post” was really a sales pitch on the employee’s part, and that it violated the terms of a non-solicitation agreement she had with her previous employer.
In another case, an employee was sued by his former employer for sending a LinkedIn invite to his former co-workers to join his network. Anyone who accepted the invite would see a job posting for the employee’s new employer. His former employer considered this to be a “solicitation” by the former employee of its current employees, in violation of a clause in the employee’s non-solicitation agreement. Here, the court found that the employee had not violated his agreement, ruling that the post was simply a “status update” rather than a “solicitation,” despite the link to the job posting.
These cases illustrate that merely accepting or sending a friend request on Facebook, or updating a LinkedIn profile, will not violate a non-compete or non-solicitation agreement. However. social media posts aimed at a specific population, or focused on former colleagues or customers, may be actionable. Former employees bound by non-compete or non-solicitation agreements should be very careful when using social media platforms, especially if they intend to engage in promotional activity. Anything more than a mere status update or generic invitation to join a social media group may get the employee in serious legal trouble.
Therefore, employees who have signed non-compete or non-solicitation agreements should understand the scope and reach of those agreements before engaging their social media network. And employers seeking to enforce their contractual rights should be mindful of activity their ex-employees may be engaged in on social media.