The use of social media as a networking platform continues to be an evolving area of law as it relates to compliance with non-compete and non-solicitation agreements. In Bankers Life and Casualty Company v. American Senior Benefits, LLC, -- N.E.3d --, No. 1-16-0687, 2017 IL App (1st) 160687 (Ill. App. Ct. Aug. 7, 2017), the First Judicial District of the Appellate Court of Illinois held that an employee’s invitations to connect with former colleagues on LinkedIn were not improper solicitations in violation of his employment agreement.
Bankers Life and Casualty Company (“Bankers Life”) hired Gregory Gelineau in 2004 and had him sign an employment agreement in 2006 stating in relevant part that, during his employment and for a period of 24 months after, he would not “personally or through the efforts of others, induce or attempt to induce: (a) any agent, branch sales manager, field vice president, employee, consultant, or other similar representative of the Company to curtail, resign, or sever a relationship with the [C]ompany; (b) any agent, branch sales manager, field vice president or employee of the Company to contract with or sell insurance business with any company not affiliated with the [C]ompany, or (c) any policyholder of the [C]ompany to relinquish, surrender, or lapse any policy issued by the [C]ompany.” Gelineau’s employment with Bankers Life ended on or about January 15, 2015, and he went to work for American Senior Benefits (“ASB”), a competitor of Bankers Life. Once employed by ASB, Gelineau sent requests on LinkedIn to connect with at least three Bankers Life employees (Richard Connors, Sally Levesque, and Russell Dolan) who worked in the Warwick, Rhode Island office. According to Bankers Life, when those employees clicked on Gelineau’s profile, they would see a job posting for ASB.
Bankers Life filed suit against Gelineau, ASB, and various individuals, alleging breach of contract. The trial court granted summary judgment for Gelineau and ASB. Bankers Life appealed.
The appellate court reviewed some cases where courts were asked to decide whether communications via social media constituted improper solicitations in violation of employment agreements. Several of the cases the court examined are analyzed in this article addressing the interplay of social media and the protection of customer lists as trade secrets. The court ultimately concluded that the invitations Gelineau sent the employees were “generic emails that invited recipients to form a professional connection.” The court found that the “generic emails” were merely “request[s] to form a professional networking connection” and they “did not contain any discussion of Bankers Life, no mention of ASB, no suggestion that the recipient view a job description on Gelineau’s profile page, and no solicitation to leave their place of employment and join ASB.” The court further commented that any further steps involving views of Gelineau’s profile page or job postings on this profile page “were all actions for which Gelineau could not be held responsible.” For these reasons and others, the court affirmed the grant of summary judgment against Bankers Life.
The court’s decision in Bankers Life is significant because it constitutes another court decision among a relatively small, but increasing, number of court decisions that has found an invitation to connect via social media does not constitute a solicitation in violation of a non-compete/non-solicitation agreement. In reaching this conclusion, the court seemed to follow the line of reasoning in one of the opinions it cited and relied on, where the court had commented that “it is the substance of the message conveyed, and not the medium through which it is transmitted, that determines whether a communication is a solicitation.” While there is logic to that statement, it also oversimplifies the power of social media. As noted in another court decision and blog post here, social media is “revolutionizing modern marketing” and can be “a powerful tool to build . . . professional networks.” Indeed, when looking at the facts in Bankers Life, the court essentially absolved Gelineau of any responsibility for the employees viewing the job post on his profile page. Such a conclusion fails to appreciate the power of social media – by connecting with these employees and having them view the job posting on his profile page, Gelineau did exactly what one wants to achieve professionally when building a network, which is to get one’s contacts and other people’s contacts to view professional related posts on one’s profile page. This continues to be an evolving area of law that should be monitored closely and addressed in consultation with counsel.