Today, people commonly use social media for professional, not merely personal, purposes. People use social media to promote themselves professionally and maintain their professional networks, and frequently turn to social media to find and apply for new jobs. Recognizing this, businesses may likewise encourage employees to connect with acquaintances as a recruiting tool. When employees have contractual obligations not to solicit a former employer's employees or customers, however, questions may arise about whether the use of social media for professional purposes violates those obligations. Below, we discuss the case law that has addressed this question and offer advice for employers confronting former employees' use of social media with the employer's remaining employees and clients.
Generic Social Media Posts Likely Do Not Qualify as Actionable "Solicitation"
In evaluating whether communications over social media constitute actionable solicitation in violation of a non-solicitation covenant, courts look to whether the communication was a targeted, individualized communication or a general public announcement or update not aimed at any particular individuals. In general, courts have found that general announcements or updates on social media do not constitute actionable solicitation because they are not directed at specific individuals.
Courts generally have found that "status updates" sent over social media announcing a former employee's new position and contact information do not constitute actionable solicitation. For example, in BTS, USA, Inc. v. Exec. Perspectives, LLC, 2014 WL 6804545 (Conn. Super. Ct. Oct. 16, 2014), after leaving his employment with one company for a position with a competitor, an employee updated his LinkedIn profile to list his new job with the competitor and also included an invitation to "check out" the new website he had designed for his new employer. The update, along with the invitation to "check out" the new employer's website, was then broadcast to the employee's LinkedIn network. The court held that the employee had not violated his non-solicitation agreement with his former employer. Noting that social media "has become embedded in our social fabric" and announcing new employment is a "common occurrence on LinkedIn," the court held that an expansive interpretation of the non-solicitation agreement to restrict the use of social media would be inappropriate, given the absence of an express provision in the contract regarding social media use and the employer's lack of policies governing employee use of social media during or after employment, including the lack of any policy requiring former employees to delete connections with the employer's clients or employees. Further, the court noted the posts would only be viewed by customers whose account settings were set configured to alert them of these types of updates, and there was no evidence that any clients actually viewed the former employee's LinkedIn activity or did business with the former employer's competitor as a result of the LinkedIn activity.1
Nor have affirmative requests to connect over social media been held to constitute solicitation. For example, in Bankers Life & Cas. Co. v. Am. Senior Benefits LLC, 2017 IL App (1st), 83 N.E.3d 1085 (Ill. App. 1st Dist. Aug. 7, 2017), the Illinois Appellate Court affirmed the trial court's ruling on summary judgment that a former Bankers Life employee did not violate his employee non-solicitation covenant by sending former co-workers generic requests to connect on LinkedIn, even though if they accepted the invitation and clicked on the link to view his profile page, they would have seen a job posting for his new employer. The court noted that the requests to connect that the former employee caused to be sent through LinkedIn were merely "generic e-mails," which "contained no discussion of Bankers Life" or any "suggestion that the recipient should view a job description on [the former employee's] profile page" or any solicitation of the recipients to leave their current employer. Id. at 23. If the recipients accepted the invitation to connect, "the next steps, whether to click on ... [the former employee's] profile or to access a job posting on ... [his] LinkedIn page, were all actions for which ... [the former employee] could not be held responsible." Id. The former employee's admission that he used LinkedIn to recruit for his new employer "ma[de] no difference" because violating the nonsolicitation agreement required "actual, direct" recruitment, which requests to connect, by themselves, were not. Id.
Targeted Social Media Communications May Constitute Actionable Solicitation
In contrast to general, untargeted posts on social media activity, communications over social media that are targeted to certain customers or employees may violate a non-solicitation agreement. For example, in Mobile Mini, Inc. v. Vevea, 2017 WL 3172712 (D. Minn. July 25, 2017), the court granted a preliminary injunction ordering a former employee to remove any posts on her LinkedIn profile that advertised her new employer's products or services, and prohibited the employee from creating any similar posts until the expiration of the non-solicitation obligation with her former employer. In that case, a former Mobile Mini employee who had left the company for a position with Citi-Cargo, a direct competitor of Mobile Mini, updated her LinkedIn account to reflect her new position at Citi-Cargo. She further wrote in her LinkedIn profile:
I'm excited to have joined the Citi-Cargo Sales Team! We lease and sell clean, safe, and solid storage containers and offices. We are locally owned and operated, with local live voice answer. We offer same day delivery to the Metro, and have consistent rental rates with true monthly billing. Give me a call today for a quote. 651-295-2982.
Call me today for a storage container quote from the cleanest, newest, safest and best container fleet in the State of Minnesota. Let's connect! 651-295-2982.
The court found that the employee's LinkedIn posts amounted to sales pitches on behalf of Citi-Cargo, which violated the employee's non-solicitation agreement with her former employer. Noting that if the posts had been "mere status updates announcing [the employee's] new position and contact information[,] ... there would likely not be a breach of contract," the court found that "the language of the posts ... demonstrate[d] that ... [the employee's] purpose was to entice members of ... [her] network to call her for the purpose of making sales in her new position at Citi-Cargo." The court further found that "in all likelihood, ... [the employee's] LinkedIn network includes at least one, if not many, Company Customers," and "[t]hus, the posts likely amount to direct solicitation of business from Company Customers."
Advice for Employers
Case law regarding whether social media use violates non-solicitation agreements continues to develop, and, as the cases discussed above demonstrate, is highly fact specific. As courts continue to grapple with this issue, employers may wish to review their nonsolicitation agreements and consider whether to specifically address social media use postemployment. Explicitly addressing social media use in a non-solicitation agreement, potentially in the definition of "solicitation," may help an employer establish a breach, in the event that a former employee uses social media to reach out to former co-workers or clients post-employment. Regardless, employers may also consider reminding departing employees during exit interviews that any contractual non-solicitation obligations include an obligation not to improperly solicit the company's customers or employees over social media.