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Social Networking or Solicitation? Courts Weigh in on LinkedIn Use

Whether it’s over freedom of speech or inappropriate workplace conduct, social media seems to be seeing a lot of legal challenges these days.

While Facebook is frequently at the center of employment-related lawsuits, recently, LinkedIn is in the hot seat. With more than 400 million members, LinkedIn has become the largest and most dominant social network for professionals, and is the preferred platform for finding and posting jobs and connecting with peers in similar fields.

While LinkedIn provides a great opportunity for brand exposure and recruitment, companies are now finding that the ease of accessibility can be a double-edged sword.

In particular, three court cases shed light on an emerging “gray-area” issue – that is, determining what activity on LinkedIn is allowable by former employees contractually bound by non-solicitation agreements. Since many companies rely on long-term client relationships and the retainment of talented workers to thrive, some have adopted non-solicitation agreements to protect against the loss of either or both by employees who might otherwise try to persuade co-workers or clients to move with them when they resign or are terminated.

Given the prevalence of social media, compliance with these agreements has become increasingly difficult to monitor. LinkedIn, for example, provides former employees with an easily accessible means to old colleagues and customers.

In a recent article for Virginia Lawyers Weekly, Kathryn Lipp and David Moon, two attorneys with Washington D.C.-based firm Berenzweig Leonard, highlight three cases involving LinkedIn and non-solicitation agreements that illustrate how purposeful contact by the former employee usually dictates whether or not there has been a contractual breach.

In the Illinois case of Bankers Life and Casualty Company v. American Senior Benefits, the plaintiff claimed a breach of non-solicitation agreement after a recently terminated employee sent LinkedIn connection requests to his former coworkers. The Illinois appellate court found that the request did not violate the employee’s non-solicitation agreement, noting that such requests did not include any discussion of either Bankers Life or the new employer and could not be considered a direct attempt to poach former colleagues. Lipp and Moon point out that the court contrasted this passive engagement with more overt solicitations like discussing the downsides of continuing employment with the former employer.

This distinction is consistent with a Michigan federal court’s holding in Amway Global v. Woodward that an employee’s blog post did, indeed, breach the defendant’s non-solicitation agreement. In this case, the employee not only announced the start of a new job but also informed readers that “if you knew what I knew, you would do what I do.”

Finally, in BTS, USA, Inc. v. Executive Perspectives, LLC, the Connecticut Superior Court faced a closer call, but ultimately found that an employee did not violate his non-solicitation agreement when announcing his new position on LinkedIn and encouraging his connections to check out a webpage he designed for his new employer.  The Connecticut court pointed out the employee’s lack of control over whether his connections, in fact, visited his webpage.

How can you protect your business?

As shown through the three referenced lawsuits, the verdict is still out on a legal framework from which employers can operate under in terms of non-solicitation and social media. That said, Lipp and Moon recommend that employers begin reviewing their current non-solicitation agreements now.

They offer several suggestions in their article:

  • Determine whether specific language governing the use of social media should be added to your employment agreements.
  • Consider doing the same for employee policies.
  • Examine the option of imposing limitations on employees’ social media interactions with customers and colleagues during employment.
  • Prohibit attempts to establish connections or the sending of targeted messages for a certain period of time following termination.

For non-solicitation agreements to be deemed acceptable by the courts, companies must ensure they are reasonable in scope and narrowly tailored to protect their legitimate business interests.

David Smith, PhD, is the president and CEO of EASI•Consult®. EASI•Consult® works with Fortune 500 companies, government   agencies, and mid-sized corporations to provide customized Talent Management solutions. EASI•Consult’s specialties include leadership assessment, online pre-employment testing, survey research, competency modeling, leadership development, executive coaching, 360-degree feedback, online structured interviews, and EEO hiring compliance. The company is a leader in the field of providing accurate information about people through professional assessment. To learn more about EASI•Consult, visit www.easiconsult.com, email ContactUs@easiconsult.com or call 800.922.EASI.

 

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