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When Does Social Media Become Prohibited Solicitation?

The pervasiveness of social media usage over the last decade has provided benefits to individuals, but added increased dangers for employers. Because social media makes it easier for individuals to build networks and maintain relationships, that same ease makes it that much harder for employers to prevent a former employee from recruiting clients and employees. Even a well-drafted, non-solicitation agreement can leave questions as to what social-media conduct amounts to prohibited solicitation. Unfortunately, there currently exists no uniform standard as to what conduct a court will consider “solicitation,” leaving the courts to apply a case-specific, fact-intensive inquiry. Nonetheless, while the results remain difficult to predict, an emerging pattern has developed with courts typically assessing the substance rather than the form of the online communication. As a consequence, the more detail the former employee adds to an online post, the more likely a court will be to find prohibited solicitation. Thus, both content and context matter.

For example, in most circumstances, a mere “status update” notifying of an employee’s job change will not rise to the level of solicitation; however, not every post of a “status update” on a social media page is so limited. Accordingly, courts have consistently looked to how the substance of a communication reflects the intent of the employee. Under this substance-focused approach, the Illinois Court of Appeals found that requests to connect with former co-workers and a job posting on one’s LinkedIn® page did not amount to solicitation. In that case, the connection requests contained nothing but the automatically-generated language, while the job post only allowed for others to solicit jobs from the company.

Similarly, when the substance of the communication contains more detailed information, courts are more likely to find prohibited solicitation of clients or co-workers. For example, a federal court in Minnesota found solicitation when a former employee posted on her LinkedIn page a status update informing of her transition to a new company and included the name of her new employer, the services she would be providing, as well as her updated contact information. The court noted that the content of her LinkedIn post demonstrated a purpose to conduct a “blatant sales pitch.” Also important to the court was that the employee used this same LinkedIn page to solicit customers while she worked for her former employer.

This latter point appears to be one that other courts find significant. In the only Georgia case addressing the issue, the Court of Appeals affirmed a finding of solicitation by a former barbershop employee who had consistently used her Facebook® page to interact with and solicit customers while with the barbershop. The employee used this same Facebook to post an update about leaving the barbershop, continued posting pictures of her clients from her time with her former employer, and after several days created a post telling current clients that they could receive discounts by referring new customers. The court found that the combined posts demonstrated the employee’s “purpose” to inform clients of her intent to open a new salon and solicit their business.

As noted above, there is no concrete formula for determining if a post constitutes a prohibited solicitation; however, content and context are undoubtedly important. Basic social media usage to maintain professional networks will typically not lead to violations of a non-solicitation agreement. On the other hand, if a post, message, or other communication contains more than very basic information about a job change, courts will become increasingly skeptical. Moreover, an employee’s prior social media usage to engage with clients or co-workers can add greater context to the substantive attempts at solicitation. In determining whether one’s conduct may have violated a non-solicitation agreement, employers should carefully consider each of these factors.

If you have questions about the type of conduct prohibited by your non-solicitation agreements with your employees or whether social media activity by a former employee violates a contractual obligation, please contact your Elarbee Thompson attorney.

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