When is social media activity a breach of a non-solicitation agreement?
Many employers are trying to limit the potential damage an employee might cause upon termination of the employment relationship by agreeing to post-employment limitations with employees. These restrictions can come in a variety of forms but most prominently they include non-competition and non-solicitation agreements. The latter can usually be further divided into agreements not to solicit customers and agreements not to solicit former co-workers after the employment relationship ends. (For more on a recent Wisconsin Supreme Court case addressing whether non-solicitation agreements are restrictive covenants under Wis. Stat. § 103.465, see our blog post here.)
Of course, with the wide-spread use of social media platforms such as Facebook and LinkedIn, the interesting question arises of when does social media activity cross over into prohibited solicitation? If an individual posts to their “network” that they have a new job with a great new employer, has that person solicited customers? If an ex-employee updates her status with available positions at her new employer but does not direct it to anyone in particular, is that prohibited solicitation?
These are all good, common questions and a recent court of appeals opinion brought to us by dirty Bears fans our friends in Illinois gives employers some valuable insight. In Bankers Life and Casualty Company v. American Senior Benefits LLC, et al., Gregory Gelineau left his employment with Bankers Life and took a position with ASB. While at Bankers Life, Gelineau agreed to terms that included he would not solicit his co-workers after his employment relationship ended. The Illinois Court of Appeals for the First Division took on questions related to the definition of “solicitation” where allegedly:
[A]fter joining ASB, Gelineau recruited or attempted to recruit Bankers Life employees and agents from the Warwick, Rhode Island office by sending LinkedIn requests to connect to three employees, Richard Connors, Sally Levesque, and Russell Dolan. According to Bakers Life, its employees ‘would then click onto [Gelineau’s] profile [and] would see a job posting for ASB.’
In addressing the issue of whether the LinkedIn posts breached the non-solicitation restrictions, the court highlighted multiple cases on this area of the law with holdings falling on both sides of the question. To answer the question at hand, the Bankers Life Court looked to “the content and the substance of the communications.” Examining the substance of the LinkedIn connection invitations, the court found they “did not contain any discussion of Bankers Life, no mention of ASB, no suggestion that the recipient view a job description on Gelineau’s profile page, and no solicitation to leave their place of employment and join ASB. . . . Furthermore, Gelineau’s post of a job opening with ASB on his public LinkedIn portal did not constitute an inducement or solicitation in violation of his noncompetition agreement.” Thus, the Illinois court of appeals was unwilling to find a mere LinkedIn connection request and general post to be a violation of non-solicitation terms.
This case is the latest example showing that the best chance for employers to enforce a non-solicitation agreement against an employee who is getting too cozy with former co-workers or clients on social media is to spell out what conduct applies in the agreement. Courts generally are unwilling to interpret agreements that lack these specifics in a way so that indirect social media activity is covered by agreements not to solicit.