When Do Social Media Posts Violate Employees’ Non-Solicitation Provisions?

The following is a guest post from Richard Escoffery, a partner at Elarbee Thompson, a labor, employment and complex commercial litigation law firm. Twenty years ago, while in law school at Emory, Mr. Escoffery was a research assistant in our firm. He is listed in Best Lawyers® in America, Georgia’s Top Rated Lawyers, AV® Peer Review Rated by Martindale-Hubbell, and Georgia Super Lawyers Rising Stars.  Rich represents companies in a full range of employment-related litigation and frequently helps his clients with difficult employment decisions and compliance issues. His clients include large and mid-sized companies in a wide variety of industries, including manufacturing, aerospace, restaurant, healthcare and financial services. Rich also helps clients protect their competitive interests by drafting carefully-tailored non-compete, non-solicitation, and non-disclosure agreements and by representing them in unfair competition litigation involving claims such as breach of contract based upon restrictive covenants, breach of the duty of loyalty, misappropriation of trade secrets, tortious interference, and computer theft. In addition, he helps his clients proactively manage online consumer reviews and address reputation attacks.  Rich is considered a pioneer in developing tailored effective reputation management solutions.

For a business to succeed, it must allow employees to form close relationships with its customers and other employees, and have access to its confidential information.  To prevent employees from using these relationships and information to unfairly compete against them, many employers require their employees to sign restrictive covenants.  The most common covenants prohibit employees from working for competitors in a similar capacity, soliciting the company’s customers or employees, and using or disclosing the company’s confidential information.  While the law varies from state to state, courts often enforce these provisions when they are tailored to protect the employer’s legitimate business interests.

Traditionally, whether a former employee was soliciting customers or employees in violation of his agreement has been relatively easy to determine.  Solicitation generally happened when the individual reached out to prohibited customers by phone, letter, fax, or e-mail and asked for their business – or tried to hire away their former co-workers by similar means.  With the rise of social media, however, there is no longer a bright line as to what constitutes solicitation.  What happens, for example, when an employee leaves the company, joins a competitor, and announces his new job on LinkedIn?  If his former employer’s customers and employees are among his LinkedIn contacts, has he just violated his agreement?

The courts have only just started to wrestle with these issues.  Based upon the early case law, however, it appears that courts are reluctant to find a violation when an employee simply updates his LinkedIn account to reflect his new job.  On the other hand, if the language in an employee’s LinkedIn profile or Facebook post actively seeks business or employees – and is directed to prohibited customers and employees – violations may be found.  Moreover, well-counseled employers are beginning to revise their non-solicitation agreements to take social media into account.  Some employers are now specifically requiring departing employees to delete LinkedIn contacts with customers and co-workers, for example, and not restore these contacts for a period of time after their employment ends.

While it remains to be determined exactly how the courts will come out on these issues, employers and employees alike need to understand the impact of social media on their restrictive covenants, and take steps to ensure that their interests are protected.