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Can social media posts violate non-solicitation agreements?

When an employee leaves your company, it's quite possible that they will already be connected with their former coworkers and even your clients on social media sites such as Facebook and LinkedIn. They may even announce their job change on those social networks. Could that violate the customer and employee non-solicitation agreements they have with you?

Although the law is not settled on the issue, the mere fact of those connections probably doesn't violate the agreements. After all, merely being acquainted with your other employees wouldn't violate an employee non-solicitation agreement. The former employee would generally have to invite former coworkers to apply at the new job, or take another specific action, before they could be accused of solicitation.

There are some activities, however, that almost certainly would violate your agreements. Consider these two cases described by the Society for Human Resource Management.

The first comes from an Illinois appellate court. A manager at an insurance and financial products firm sent LinkedIn invitations to his former colleagues. When the invitees clicked on the request, the link connected them to the man's profile. That profile contained job listings for his new employer.

However, the invitations themselves were generic and did not mention the new employer or the job listings. And, the job listings were posted by the employer, not the former manager, and he had no control over them. The court held that his sending these invites did not violate his employee non-solicitation agreement with his former employer.

In the second case, a sales representative took a job at a direct competitor. She then updated her LinkedIn profile to reflect the job change. She also described her new employer, posted photos of its products, and directly solicited requests for quotes on those products. These profile changes and a subsequent post soliciting requests for quotes were visible to all of her LinkedIn connections, which included some of her former employer's customers.

A federal district court in Minnesota found that advertising her new employer's products and offering quotes in this way did violate her customer non-solicitation agreement. She was ordered to refrain from advertising those products on LinkedIn until the agreement expired.

What should your company do?

It's important for you to have a sound social media policy, not only for your former employees but also for any employees you hire who may have these agreements with their former employers.

Communicate that announcing their new position is probably acceptable but that they should be careful and respectful of their responsibilities under any non-solicitation agreements they may have. Encourage them not to take any actions that could be seen as actively soliciting former colleagues or customers until any such agreements have expired.

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