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Home / Employment Law in Virginia / When does ex-employee’s use of LinkedIn violate a non-solicitation agreement?

When does ex-employee’s use of LinkedIn violate a non-solicitation agreement?

More on Employment Law in Virginia

By Katie Lipp and David Moon

linkedin_mainLinkedIn 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.


lipp_hedKathryn (Katie) Lipp

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 klipp@berenzweiglaw.com or (703) 462-8607.

moon_hedDavid Moon

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 dmoon@berenzweiglaw.com or (703) 663-8179.

 

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