Enforcing Non-Solicitation Clauses in the Social Media Context
Many companies require that their employees sign non-solicitation and non-competition agreements as a potential safeguard against unfair competition. However, these same employees often maintain active social media accounts that include hundreds, if not thousands, of business and personal contacts. In the age of Facebook, LinkedIn, Twitter and other mediums, the question of exactly what is a wrongful solicitation becomes even more complex if the communication in question is on a social media platform.
Courts are increasingly facing this issue. Consider the recent Illinois case of Bankers Life & Casualty Co. v. American Senior Benefits, LLC, 2017 IL App (1st) 160687, which analyzed the potential liability that can arise through an employee’s use of LinkedIn.
Bankers Life & Casualty Company hired Gregory Gelineau as a branch sales manager for one of its local offices. Gelineau had signed an employment agreement with a non-solicitation clause that barred him from attempting to induce any other employee to leave Bankers Life. After Gelineau left Bankers Life, he was hired by American Senior Benefits LLC, a competitor. Bankers Life filed a complaint against ASB and Gelineau, alleging that Gelineau breached its non-solicitation agreement by sending LinkedIn requests to connect to three Bankers Life employees who, upon accepting Gelineau’s request, would see an ASB job posting on Gelineau’s profile. Bankers Life claimed that this conduct amounted to wrongful solicitation of Bankers Life employees. Gelineau moved for summary judgment and submitted an affidavit that the LinkedIn invitations to connect were sent to everyone in his contacts list, which included the three Bankers Life employees.
The circuit court rejected Bankers Life’s claim and granted Gelineau summary judgment. The Illinois Appellate Court for the 1st District affirmed this ruling. The appellate court noted that Gelineau’s generic LinkedIn emails merely invited recipients to form a professional connection and did not contain any mention of Bankers Life, ASB or a job solicitation or posting. Upon receiving Gelineau’s emails, the employees controlled the next steps — they could accept the invitation and become a LinkedIn connection or reject it. If the employees did connect with Gelineau, the next step of viewing Gelineau’s LinkedIn profile (which contained an ASB job posting) was again entirely up to the employees. The court contrasted Gelineau’s conduct with other types of social media cases from around the country and found that the lack of a clear company policy prohibiting such conduct — coupled with the nature of the communication — was not enough to find him in breach.
Following the Bankers Life ruling, employers (especially those in Illinois) should be aware that a former employee may attempt to connect with an employer’s customers and personnel through social media, regardless of whether the former employee is under a valid non-solicitation agreement. Companies are not without options, however. An employer can have its employee non-solicitation agreements drafted in a manner that directly addresses social media and prohibits certain types of interactions. The employer may also monitor any work emails received by its employees from the former employee. (Note: company policies should clearly state that there is no expectation of privacy in work emails.) Finally, the employer may audit the former employee’s work computer and devices to see if any actual solicitation of other employees or customers occurred.
In addition, transitioning employees should not be under the impression that they have free reign on social media platforms. The Bankers Life court cited to several cases around the country that have found instances of wrongful solicitation on social media platforms based upon the type of communication made by the employee. For example, a LinkedIn friend request coupled with a message attempting to persuade the recipient to resign, soliciting the recipient for hire or directing the recipient to a job posting would likely violate most non-solicitation clauses. Also, a former employee’s social media post indicating when his non-competition agreement ends and seeking replies from customers could qualify as violative of a non-solicit provision.
Non-solicitation and non-competition agreements pose complex legal issues. Taft attorneys are experienced in in providing counseling, drafting and litigation services regarding the use and enforcement of these types of agreements.
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