Many employers have become increasingly familiar with the use and enforcement of non-compete and non-solicitation agreements. With respect to the latter, the focus is on preventing employees from soliciting the employer’s other employees and its clients in the event the employment relationship ends. So long as the geographic scope and time restriction of the non-solicitation agreement remain reasonable, courts are oftentimes inclined to enforce those agreements.
But with the proliferation of social media and its use for professional networking, questions as to the scope of non-solicitation agreements arise. If, for example, the employee posts job change information on her public social media accounts, does that run afoul of her non-solicitation agreement? Likewise, can she identify her new employer and discuss the contours of her new job on social media networking sights like LinkedIn? If she is connected with other employees or with clients, do those posts constitute improper solicitation?
The answers to these questions likely depend on the specific nature and content of the social media post at issue (as well, of course, as the specific language of the non-solicitation agreement). Indeed, an Illinois appellate court that recently addressed this issue drew a distinction between passive posting of update information and active solicitation posts. See Bankers Life & Casualty Co. v. American Senior Benefits, LLC, 2017 WL 3393844 (App. Ill. Aug. 7, 2017). Distinguishing between two prior cases, the court clarified that one social media post did not violate the non-solicitation provision because the communication merely reflected that the employee changed jobs, identified the new employer, and provided an example of the employee’s work. The other, however, was in violation because it went further, urging the employee’s former co-workers to leave the company by stating, “If you knew what I knew, you would do what I do,” which the court said “would readily be characterized as solicitation.”
That is, not surprisingly, the substance of the communication is critical to determining whether the employee has violated a non-solicitation agreement. It matters not that the employee does not actively reach out to specific individuals or companies – she cannot hide behind “passive” posting on social media if the content otherwise actively solicits employees, clients or prospective clients in violation of an enforceable non-solicitation agreement. And reaching out to specific individuals or companies may be acceptable if such contact does not constitute solicitation.
In Bankers Life, for example, the Illinois appellate court found the employee did not violate the applicable non-solicitation agreement by sending LinkedIn requests to connect that did not mention the prior employer, the existing employer or otherwise solicit the prospective connection. Since the requests were limited to seeking a professional networking connection, they did not violate the non-solicitation agreement. Yet, conversely, public posts not targeted to specific individuals do violate such an agreement when those posts, like the example above, are in the nature of a solicitation.
Although courts continue to define the contours of how social media posts fit within the scope of non-solicitation agreements, employers would be well advised to carefully scrutinize their employees’ public posts after termination of the employment relationship. Likewise, employees should tread carefully on social media to ensure they do not run afoul of applicable agreements. From either perspective, the nature and content of such posts will likely dictate whether they actually violate the non-solicitation agreement.