Avoid Violating Nonsolicitation Agreements Through Interactions on Social Media

As social media use becomes ubiquitous, it seems any time an employee takes a job with a competitor a battle begins over his or her subsequent use of social media. Usually, countless customers and colleagues are already the departing employee's friends, followers or connections on social media. If they are not already connected, it is easy for the departing employee to connect with them later. 

In fact, a departing employee typically announces his or her new position, promotes the new employer on social media, and expands his or her network by connecting with any customer or former colleague that was not already a part of it. The former employer often sees that as a violation of noncompete or nonsolicitation agreements or claims that the activity constitutes a misappropriation of trade secrets. As a result, cease-and-desist letters are fired off and, if that does not work, litigation ensues.

While the post-employment social media activity that you can get away with differs from state to state—California generally is more lenient on the departing employee—some recent court decisions are showing a trend in social media activity that is permitted, even in the face of a nonsolicitation agreement. 

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LinkedIn Request to Connect OK'd

In a 2017 decision by an appellate court in Illinois, the court found that a LinkedIn request to connect did not violate a former manager's nonsolicitation agreement.

In that case, a company selling insurance and financial products claimed a departing manager breached his nonsolicitation agreement by sending his former colleagues a LinkedIn request to connect that, if clicked, gave access to his profile. That profile included job postings for the new employer.

In finding that the LinkedIn request did not violate the nonsolicitation agreement, the court noted that the invitations to connect were generic e-mails that did not mention the manager's new employer, the job postings or otherwise encourage his former colleagues to leave their employer. The court noted that, even if the employees chose to accept the invite, the next steps of clicking on the profile or the job posting were choices they made and for which the manager could not be held responsible.

LinkedIn Posts Were Not OK

In a 2017 case from Minnesota, a federal district court found that a departed employee's LinkedIn posts went too far and granted the former employer's request for relief.

In this case, a sales representative joined a direct competitor and updated her LinkedIn profile to reflect her new position, describe her new employer, include photos of its products and directly solicit calls for a quote. That profile update and a subsequent post soliciting calls for quotes were visible to her 500-plus connections, which included customers of her prior employer, who received e-mail notifications about the new posts. 

The court found that these posts violated the sales representative's nonsolicitation agreement because, instead of merely announcing a job change, the purpose of her posts was to entice members of her network, including her former employer's customers, to call for quotes. The court blocked her from making posts advertising her new employer's products and services on social media sites until the expiration of the nonsolicitation agreement, as long as her social media network included her prior employer's customers. 

Educate New Employees

These cases illustrate that, generally, it is not requesting the connection that is the problem, but rather the content and substance of the request. So, make sure your new employees know there is nothing wrong with announcing their new jobs and expanding their social networks. But they need to be careful when sending connection requests to former customers and colleagues if they have noncompete or nonsolicitation agreements in effect, and they should limit their requests to just invitations to connect or announcements of a new position until the agreements have run their course.

Peter Wucetich is an attorney with Stuart Kane LLP in Newport Beach, Calif.

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