It is common practice in Ontario for employers to restrict a departing employee’s ability to solicit employer customers, suppliers, current employees, etc. Although many such clauses specify particular actions that are prohibited, very few turn their mind to governing a departing employee’s actions on social media.
As the Canadian courts have not yet ruled on this issue, our guidance comes from the United States and the United Kingdom. After reviewing these cases, several principles become apparent when interpreting non-solicitation clauses that do not specifically address social media.
The rule of thumb is that a former employee governed by a non-solicitation clause is free to globally post messages on their social media account that state that they have changed employers or express how great their new employer is. In the case of a corporation subject to a non-solicitation agreement, it can post to its LinkedIn account or Facebook page that it is looking for new hires despite the fact that some of its connections or friends would be off limits if directly contacted. However, these messages would be seen in a very different light by the courts if they were sent privately or, in the case of Facebook, if they “tagged” particular individuals or a group of individuals that would be off limits pursuant to a non-solicitation agreement.
In Pre-Paid Legal v Cahill, the employee “[touted] both the benefits of [his new employer’s] products and his professional satisfaction with [his new employer]” on his Facebook page. The court did not find this was solicitation despite this employee being Facebook friends with several employees of his former employer, PPLSI. The court explained that there was no evidence that the posts “resulted in the departure of a single PPLSI associate, nor was there any evidence indicating that [the employee was] targeting PPLSI sales associates by posting directly on their walls or through private messaging.” The court also advised that if the employer wants to protect against these sorts of acts in the future, it should do so by clearly defining prohibited actions on social media.
Enhanced Network Solutions v. Hypersonic Technologies Corp. pushed the boundaries in the area of non-solicitation and social media. In that case, ENS and Hypersonic signed a non-solicitation agreement. Hypersonic posted a job opportunity on their LinkedIn page and an employee of ENS responded and was eventually hired by Hypersonic. The court found that Hypersonic’s conduct did not amount to solicitation under the agreement because they were passive in their hiring of the employee.
In the somewhat similar case of Invidia, LLC v DiFonzo, a new employer announced on Facebook that it was hiring a particular employee. The court found that this announcement did not violate that employee’s non-solicitation agreement with her former employer, despite the post resulting in clients leaving the former employer for the new company. The court went so far as to explain that “[s]o long as [the former employer’s clients] reached out to [the employee] and not vice versa, there is no violation of the non-solicitation provision of the Agreement.”
In KNF&T Staffing Inc. v Muller, the court held that an employee posting that they had a new job does not constitute solicitation, even if some of the former employer’s employees were “linked” to the departing employee’s profile. The court in BTS USA Inc. v Executive Perspectives LLC went even further to say that it was not solicitation when a former employee invited all of his LinkedIn connections to check out the new website he designed for his new employer.
What Should Employers Do?
The cases referred to above were all situations where the particular non-solicitation clause/agreement did not specifically address social media. Going forward and despite the lack of guidance from the Canadian courts, employers may want to turn their attention to amending their non-solicitation clauses to specifically govern the conduct of former employees on social media. However, employers will want to ensure that these clauses are relatively narrow to increase the chances of being held enforceable by the courts.
Though there is no guidance in Canada to assess the likelihood of enforceability of non-solicitation clauses limiting activity on social media, employers could begin to address such issues by requiring a departing employee to unlink from all connections on social media that were made as a result of their employment. In a more narrow and precise approach, the employer could list out specific people or clients that the departing employee must unlink from. Additionally, the employer could limit the types of “global” posts the departing employee can make on social media. For example, the employer may allow the employee to state that they have moved to a new employer, but prohibit expression of how great that employer is.
The key takeaway from the cases above is that boilerplate non-solicitation clauses are generally insufficient to govern a departing employee’s activity on social media. However, it is important that these clauses are not drafted so broadly as to be entirely unenforceable.