Non-Solicitation Agreements in the Age of LinkedIn
LinkedIn has transformed the way people build and promote their professions. LinkedIn is more than an electronic rolodex. It is a convenient portal for members to not only share their professional status but also stay updated on the professional lives of current and former peers, colleagues, clients, and classmates. By its nature, it also presents challenges to employers seeking to enforce and employees seeking to abide by non-competition and non-solicitation provisions in employment agreements.
A typical non-solicitation agreement will preclude an employee from directly or indirectly soliciting an employer’s customers and/or employees for a reasonable period of time after the termination of employment. When that employee is connected via LinkedIn with the restricted customer or employee, the question becomes what and how much social media activity violates a non-solicitation provision, particularly if it is silent on social media use. The trends suggest that passive social media activity will not be considered actionable conduct, while more active conduct with restricted parties could be a violation. The law on this issue is far from settled, but this article posits some useful guidelines based on decisions addressing these challenges.
First, general announcements and other limited communications conveyed via LinkedIn would not rise to actionable solicitation. For example, an invitation to join one’s LinkedIn network would likely not violate a non-solicitation provision in an employment agreement, even if sent to a customer of a former employer. An individual should also be able to update her employment information and skills and expertise without violating a non-solicitation agreement, even though these updates are broadcast to her entire network. These limited levels of communication are insufficient to establish that the former employees solicited customers or employees.
The content of the messages is important though, and targeted content attempting to induce customer or employee movement is likely to be considered an improper solicitation. So, using LinkedIn to target communications with a restricted class member seeking to discuss potential business or employment opportunities with one’s new employer could constitute solicitation.
While the law is not settled in this newly emerging area of the law, the trend seems to be that remaining in contact with a restricted class, and even providing the restricted class with general updates about one’s profession, should not violate a non-solicitation provision of an employment agreement.
On the other hand, messages that are more targeted for the purposes of inducing a client to move its business will likely constitute solicitation. To the extent that LinkedIn messages may directly reach restricted clients or employees, an individual subject to a non-solicitation restriction should be careful to avoid messages inducing restricted clients or employees to follow her to her new employer. For example, she should not include such statements as “My new employer is firmly committed to providing you with exceptional service.” Similarly, she should avoid posts that in any way compare her new employer or its services to those of her previous employer, which could arguably be indirect solicitation. In addition, to the extent she does post articles or other content to her LinkedIn profile, she should avoid concluding with an invitation to readers to contact her to find out more about the products and services her new employer offers.
With ever advancing technology and social networking tools, employers with non-solicitation provisions will need to establish a strategy for monitoring a former employee’s internet activities to look for violations. Employers should also consider adding specific language to their non-solicitation agreements to address social networking activity. Employers hiring an individual with a non-solicitation provision should also manage their new employee’s social networking activity to avoid violations that may result in litigation against both the new employee and the new employer.
For more information please contact John Burke
or Heather Maly
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.