Social Media and Non-Compete/Non-Solicit Policies
As mentioned in IP Issues and Social Media: Part 1 – BYOD, the lines between “work” and “play” have blurred for many employees in the modern workplace. In addition to using electronic devices for both business and personal use, many workers connect and communicate with work-related contacts using their personal social media accounts. While this integration can foster better business relationships, it can also lead to myriad unintended consequences.
Mistakes and Accidental Violations
For most users, LinkedIn is primarily a site for work-related social interactions. These interactions typically involve networking and sharing with people who are related in some way to users’ business activities, such as potential clients, referral sources, competitors, suppliers, potential employers, or other connections. Many employers actively encourage professional use of this social media platform by their employees to enhance business development and professional networking.
However, some of LinkedIn’s features could lead to unintended legal consequences. Many employees are party to non-competition and/or non-solicitation clauses in their employment agreements, which restrict the type of communications they may have with an employer’s clients, potential clients, and other business contacts after their employment ceases. If you or your employees are subject to these kinds of restrictions, be extra careful when using LinkedIn.
One of the features that could cause trouble relates to how LinkedIn’s contact requests function. When a user sends a contact request, the LinkedIn program automatically sends two subsequent “reminder” emails if the potential connection does not accept or answer the initial request. (This practice recently resulted in LinkedIn settling a class action lawsuit brought by LinkedIn members who believed their reputations were damaged by the “spam” emails.) It is easy to imagine a situation where a user would send a contact request completely in compliance with any employment agreements, while he was still employed by Company A, and terminate his employment before the potential connection responded to the request. Would the subsequent, automatic emails – not initiated by the former employee, but sent on his behalf – constitute actionable contact in violation of his non-competition or non-solicitation agreement?
Intentional Communications and Ordinary Use
Similarly, what if the user initiated the initial contact request accidentally? LinkedIn regularly asks its users to “import contacts” to facilitate sending connection requests. Users may not realize that granting the application this blanket permission will result in sending contact requests to essentially everyone they’ve ever been connected to through email. Is asking someone to be your LinkedIn contact in this kind of mass-mailing potentially a violation of a non-solicitation agreement? That is, if you agree to have no contact with your employer’s current or potential customers but (intentionally or accidentally) send them a generic contact request through LinkedIn, have you violated your agreement?
Certainly, best practice requires users to refrain from intentionally contacting those individuals via LinkedIn (or any other social media) that they would be prohibited from contacting in real life. A generic contact request, sent as part of establishing a LinkedIn account or by virtue of an unintentional mass-request, may be defensible conduct. However, sending an intentional contact request to a member of a restricted class (an individual covered by an enforceable non-solicitation or non-competition agreement) after employment ends, particularly if it is followed by additional personal communication, may be impermissible.
Another LinkedIn feature announces to your network when you change jobs or begin new ventures. If you are “connected” to individuals whom your agreements do not allow you to solicit (for example, existing or potential clients of a former employer), would this automatic message sent to them by LinkedIn on your behalf violate your agreement? While there is not much governing case law, overall the current cases seem to indicate that remaining in contact with these individuals and providing general updates about one’s current employment would not likely violate a non-solicitation provision of an employment agreement. Communications that are general updates, even if they pertain to employment opportunities, have been found permissible if they are sent or disseminated to a user’s entire social network and bear no indication of being intentional solicitations. Using LinkedIn to directly reach out to former clients in competition with your previous employer, however, certainly amounts to improper competition.
Although a mere automatic notice of activity, sent by the LinkedIn system, probably wouldn’t be a communication that rises to the level of a prohibited “solicitation,” more specific messages may be more problematic. If a user starts his or her own competing venture and posts a message that describes the new business, with the intent to entice new customers, that communication may be in violation of a non-competition or non-solicitation provision. Posts that promote the services of a user’s new employer, sent to clients of the user’s previous employer, also may be considered “solicitations.” Users must take care that such postings are not disseminated to individuals in violation of existing restrictive agreements.
More Communication Needs More Communication
For employers, the best way to staunch the potential floodwaters of out-of-control social media is by implementing specific policies. Write clear and unambiguous language setting forth your social media policy, being sure to delineate and enforce the rights and responsibilities that employees have when using LinkedIn and other social media, both during their time of employment and after. This language can be written into non-competition and non-solicitation agreements and/or employee handbooks. It can include:
- Restrictions on mentioning an employer specifically on social media
- Restrictions on who an employee can be connected or Linked with during and after their employment
- Specific instructions on how to handle post-employment LinkedIn and other social media communications
You can require that an employee agree that mentioning his or her affiliation or employment with the employer on LinkedIn or other social media without prior written approval of the content by the employer is not permitted. If an employee is permitted to connect with clients via LinkedIn, an employer may require that they change their settings so that other users cannot see their contacts.
Use exit interviews and communications to remind departing employees of their responsibilities under their non-solicitation and non-competition agreements, including what that means with regard to social media. If you wish to ensure that your employees comply with those obligations, you must also monitor their social networking communications for the term of their restrictive covenants. If you learn of activity you believe violates your policies and/or an employee’s agreements with you, it is important to preserve evidence through screen shots or other permanent means. You should consult with an attorney before taking action to quickly put the employee on notice of the violation.
Consulting with an attorney who is familiar and comfortable with social media is vital in today’s social media heavy world. Whether you need help drafting non-competition and non-solicitation agreements for prospective hires, supplementing your existing employee policies, or analyzing your own rights and responsibilities when departing your employment, an experienced attorney can help you navigate these modern communication issues.
The content of this legal blog is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide legal advice. This blog is not legal advice and no attorney-client relationship created between you and Bristow-Ford Law or Susan Bristow-Ford. You should not act upon this information without seeking advice from a lawyer licensed in your own state or jurisdiction. No information herein should be used as a substitute for competent legal advice from a licensed professional attorney in your state or jurisdiction and your use of this information is at your own risk. The information herein may not reflect the most current legal developments, verdicts or settlements and may be changed, improved, or updated without notice. Bristow-Ford Law or Susan Bristow-Ford is not responsible for any errors or omissions in the content of this site or for damages arising from the use or performance of this site under any circumstances.
Written with the assistance of attorney Jamie Pfeiffer.
 Pre-Paid Legal Communications v. Cahill, 924 F.Supp.2d 1281 (U.S.D.C. E.D. Okl. 2013) (Facebook posts promoting a new employer, posted generally to an employee’s personal account, were not improper “solicitations”); Enhanced Network Solutions Group, Inc. v. Hypersonic Technologies Corp., 951 N.E.2d 265 (Ind. Ct. App. 2011) (A former employee posting an employment opportunity with his new employer on his LinkedIn that would be viewed by a contractually prohibited class of people did not constitute improper solicitation).
 Coface Collections North America Inc. v. Newton, 430 Fed.Appx. 162 (3d Cir. 2011) (departed part-owner’s direct LinkedIn communications were part of overall scheme to compete with his former company in violation of his restrictive covenant); Total Care Physicians v. O’Hara, 798 A.2d 1043 (Del. Super. Ct. 2002) (nature of the intentional communications from departing physician to patients via LinkedIn made them improper solicitations of restricted class).