Non-solicitation and confidentiality agreements tested by social media

By Michael Burns, courtesy of SBAM Approved Partner ASE

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)

The law currently trends toward the position that “general announcements and other limited communications” do not rise to the level of active solicitation and therefore may not constitute actionable solicitation. The content of the message is important notes John David Burke and Heather L. Maly in their article Non-Solicitation Agreements in the Age of LinkedIn, “targeted content attempting to induce a customer or employee movement is likely to be considered an improper solicitation.” 
 
If an organization’s Human Resource Department (HR) oversees recruitment and employee relations, HR should be monitoring employee turnover, social media use by employees, and working with qualified legal counsel to ensure any non-solicitation and/or confidentiality agreements are keeping up with advancing technology and social networking tools. 

This goes both ways of course. Employers hiring employees from the industry they are in or a competitor should ask candidates about existing non-solicitation and confidentiality agreements the candidate may be under.  Make sure the new employee understands that their new organization abides by the law. 

This area of the law is moving quickly. Employers and HR departments need to review its policies and agreements and ensure they reference social media and the types of communications in these areas. If communications are found that solicit in some fashion, the employer should act to preserve this information before it disappears.