Non-Solicitation And Confidentiality Agreements Tested By Social Media

LANSING – Employers today should assume employees are tied to one another through the use of LinkedIn, Facebook, Twitter, or all of these social media sites. In fact, employers can and do encourage employees’ use of social media to enhance marketing, business development, and employee recruitment.

However, employers are also utilizing confidentiality and non-solicitation agreements that not only seek to protect client relations and important business strategies but also an organization’s human resources – valuable skilled employees that may be lured away by former employees now working for some other organization, even a direct competitor.

So where do the above two paths cross and cause problems? An employee under a non-solicitation agreement leaves an employer and communicates to his/her social media connections (including many current employees) that they have landed a job at another organization. Can this alone be considered solicitation? Courts have found that absent a clear definition of “solicit” that covers the type of solicitation prohibited, the now aggrieved employer may have no case.

Is this active or passive solicitation? Active solicitation would be including an invitation to contact the former employee if they are interested in other opportunities or alternatively, sending a personalized message to a select group of employees at the former employer. This would cross the line in many of today’s updated non-solicitation agreements.

However, what if the person’s social media communications stopped at just the notice, but then an automatic notification feature of the social media site sends this information to all “connections” that the former employee was now working at organization X? The aforementioned notifications have been found to be passive and in one recent case in Illinois insufficient to prove violation of the employee’s non-solicitation agreement. Bankers Life and Casualty Co. v America Senior Benefits LLC (Ill App.Ct.8/7/2017)

To read the rest of this column, click on https://www.sbam.org/Resources/tabid/97/ArtMID/2980/ArticleID/3019/Non-solicitation-and-confidentiality-agreements-tested-by-social-media.aspx