By Katie Lipp and David Moon
LinkedIn has quickly emerged as the premier social media outlet for professional networking in the United States. However, while the platform presents an exciting opportunity for companies to identify job candidates, expand business networks and maintain client relationships, its networking features have given rise to a host of potential headaches regarding departing employees.
One such emerging issue involves whether activity by a former employee on LinkedIn amounts to solicitation of customers or employees in violation of the former employee’s contractual obligations. The prevalence of LinkedIn and other social media platforms in the professional world complicates the scope of non-solicitation agreements and will likely necessitate the revision of such contracts or the adoption of comprehensive social media policies going forward.
Because the viability of many companies depends on long-term client relationships and retaining talented workers, some have adopted non-solicitation agreements to prevent employees from poaching other workers or clients following their separation. However, measuring compliance with these agreements has become increasingly difficult in recent years since social media platforms such as LinkedIn provide former employees with an easily accessible means to network with their old colleagues and former employer’s customers. While determining whether certain conduct violates a restrictive covenant used to be relatively straightforward in the context of a targeted letter or email, social media now presents the possibility of passive solicitations, where a former employee may indirectly influence clients and colleagues without necessarily intending to violate a non-solicitation provision.
Although the question of whether social media use violates a non-solicitation agreement comes down to the specific facts, recent precedent suggests that passive activities—such as sending a connection request or updating one’s employment information—are generally not actionable. However, targeted messages to former clients and colleagues urging them to follow suit, or discussing the drawbacks of continuing a relationship with the former employer, are more likely to constitute a breach.
What sort of online activity violates the standard non-solicitation agreement?
A violation of a non-solicitation clause will be contingent upon the substance and nature of the LinkedIn activity. Generally, solicitations through social media may be considered passive or active in nature. Passive actions by former employees include updates to the employment information listed on their profile and transmission of generic connection requests, whereas active use of LinkedIn manifests in targeted messages to a specific audience that tend to encourage defection to a new company, or take aim at the shortcomings of the former employer. Despite this nomenclature, passive activity by an employee may alone be sufficient to cost the former employer’s business. LinkedIn not only makes new employment information visible to all of a former employee’s connections, but also may send each connection an e-mail notification of a recent profile update. Therefore, a single announcement could cause considerable harm if a particular customer or colleague has a personal relationship with the departed employee.
Three cases involving LinkedIn and non-solicitation agreements illustrate how the level of purposeful contact by the former employee usually dictates whether or not there has been a contractual breach. The most recent case arose in Illinois and involved an employer’s claim for breach of a non-solicitation agreement after a recently terminated employee sent LinkedIn “connection” requests to his former co-workers. In Bankers Life and Casualty Co. v. American Senior Benefits LLC, the Illinois appellate court found that these requests did not violate the employee’s non-solicitation agreement. The court noted that the requests to connect contained no discussion of either the old or new employer and could not be considered a direct attempt to poach these former colleagues. The court contrasted this passive activity with more active solicitations such as discussing the downsides of continuing employment with the former employer or otherwise urging employees to join a new company.
The distinction drawn by the Illinois court between passive connection requests and targeted solicitations is consistent with a Michigan federal court’s holding in Amway Global v. Woodward that an employee’s blog post breached his non-solicitation agreement. There, the employee not only announced his commencement of a new job, but also informed readers that, “if you knew what I knew, you would do what I do.” The Michigan court found that the substance of this material crossed the line by hinting at the downsides of continuing employment with the former employer.
In BTS, USA, Inc. v. Executive Perspectives, LLC, the Connecticut Superior Court faced a closer call, but ultimately found that an employee did not violate his non-solicitation agreement when announcing his new position on LinkedIn and encouraging his connections to “check out” a webpage he designed for his new employer. In holding for the former employee, the Connecticut court deemed significant the employee’s lack of control over whether his connections in fact visited the new webpage, as opposed to a situation in which an employee directly messaged his former employer’s clients or workers.
What can be done to ensure passive social media use does not harm an employer’s business?
In light of the unique issues created by passive solicitations, such as those made available through LinkedIn, employers should consider including specific language in their employment agreements and policies governing the use of social media. Companies should consider both imposing limitations on their employees’ social media interactions with customers and colleagues during employment and prohibiting attempts to establish connections, or the sending of targeted messages, for a certain time period following termination.
However, as is the case with practically all restrictive covenants, Virginia courts will likely view such LinkedIn-specific clauses as disfavored restraints on trade and competition. Employers must therefore ensure that such agreements are reasonable in scope and narrowly tailored to protect their legitimate business interests. Additionally, companies must take care not to violate labor relation laws which protect workers’ rights to discuss work-related issues and share information about pay, benefits and working conditions.
Although the legal framework governing the interaction between social media and restrictive covenants is still in its infancy, employers should consider whether the protection afforded by their current non-solicitation agreements is adequate to address social media such as LinkedIn.
is a senior associate attorney with Berenzweig Leonard where she litigates labor, employment, business and construction matters for corporate and executive-level clients. She has been recognized as a Legal Elite and taught numerous seminars on HR, construction and business law issues. Ms. Lipp enjoys taking on any litigation matters, particularly union-inflected cases. She has litigated cases involving almost all aspects of employment law, including workplace violence, gender discrimination, racial discrimination, retaliation, wage disputes, restrictive covenants, defamation, charges under the National Labor Relations Act, and wrongful termination grievances. She recently achieved a unanimous jury verdict at the 36th Annual Trial Advocacy College in Charlottesville, Virginia. Ms. Lipp is a graduate of James Madison University and the George Mason University School of Law. She can be reached at email@example.com or (703) 462-8607.
is an associate attorney at Berenzweig Leonard, and represents companies and executives in employment and government contracting disputes before state and federal courts in Virginia and Maryland. Mr. Moon graduated with high honors from Florida Atlantic University and magna cum laude from the George Mason University School of Law. He can be reached at firstname.lastname@example.org or (703) 663-8179.