Through the tides of increasing change in a society that becomes more digital by the second, social media activity has become a key concern in those disputes about non-solicitation clauses and in updating employer form agreements. A common observation discovered in litigating those matters is that, in most instances, the underlying contracts are not well drafted to specifically address social media activities that former associates engage in with customers after leaving a company. As an anecdotal example, in my practice I have handled multiple disputes regarding non-solicitation litigation in which the central issue in the case dealt with more passive forms of solicitation through social media activity and whether the social media activity fell within the scope of a very broad non-solicitation provision that did not at all address social media activity. To this day, the courts across the country have provided broad-ranging and often inconsistent answers to the difficult question of whether different forms of common social media activities with customers or clients of a former employer should be ruled to violate non-solicitation clauses that are broad and do not contractually ban the social media interactions at issue.
Largely, the employer contracts have not caught up with the rapid changes in the number of ways we interact, and the courts have been left in a tough position to resolve these difficult questions, which has resulted in differing resolutions at times. This certainly creates room for advocacy, but also for uncertainty. Thus, the easier answer would seem to be to work with your clients and draft non-solicitation clauses that expressly address as many of the social media contacts with customers that you agree should and can be prevented (e.g., subject employees of the company may not send friend requests to customers). Taken to the extreme, however, these types of sub-provisions could become questionable as to enforceability, and they require careful discussion between the company and its legal advisors about proper tailoring to reasonably protect business interests.
A Changing Landscape
Practitioners should anticipate that the issues raised in this article will continue to arise more and more in future litigation, as people continually transition to live more and more of their lives online—which has only been further stoked by the social distancing policies that have now become the new normal for the foreseeable near-term future. Within the past decade, social media have become integrated in both the professional and personal lives of working professionals, and social media sites are also increasingly used by various types of firms as recruiting tools. With the influx of networking, connecting, recruiting, messaging, posting, and blogging all being hosted on social media sites, the question facing courts in the social media age is this: What types of social media activity, if any, constitute a breach of a garden-variety non-solicitation agreement?
To address the uncertainties in the case law, this article provides a non-jurisdiction-specific overview of the current state of the law from litigation over whether social media activity by former employees may violate restrictive covenants in employment contracts. In addition, the article provides tips on how businesses can protect their legitimate business interests through careful drafting of non-solicitation clauses in staff employment contracts.
Courts’ Prevailing Approach to Social Media Activity and Restrictive Covenants
Although there is still not a well-developed body of law on this issue, courts have begun to interpret the question of whether social media activity amounts to an actionable breach of a non-compete or non-solicitation agreement. The general consensus among most courts is to analyze the social media activity based on the “substance of the message conveyed, and not the medium through which it is transmitted.” Bankers Life & Cas. Co. v. Am. Senior Benefits, 83 N.E.3d 1085, 1091 (Ill. App. Ct. 2017) (quoting Amway Glob. v. Woodard, 744 F. Supp. 2d 657, 674 (E.D. Mich. 2010)). Social media activity like “friending” or connecting on LinkedIn is, in itself, generally not found to be a solicitation. Communications over social media that are truly passive in substance have not been held to be a breach of a non-compete or non-solicitation agreement. On the other end of the spectrum, communications that are an actual and direct recruitment, competition, or solicitation are deemed actionable for breach under this standard. See Kennedy v. Shave Barber Co., LLC, 348 Ga. App. 298 (2018), cert. denied (Sept. 3, 2019) (barber actively recruited clients to her new business via social media messages, and solicitation was expressly restricted by her contract). This standard is sound, fair, and logical; however, the problem for many businesses is that this standard is not able to take into account the reality of how many of the platforms work. Once the former employee is able to add key personnel from a customer as a contact, that contact will then see all general marketing posts in his or her newsfeed, even assuming that none of that information is being sent as a direct message.
The threshold for where passive communications turn into actionable conduct under a restrictive covenant is a gray area that courts continue to interpret. See Le-Vel Brands, LLC v. Bland, No. 3:19-CV-00154-L, 2019 WL 4753041, at *9 (N.D. Tex. Sept. 30, 2019). To date, courts have analyzed whether the act of networking with a client or employee gives rise to actionable conduct. Overwhelmingly, courts have found the mere act of sending or accepting a generic friend or connection request to or from a former client or former coworker on a social media website is not sufficient to breach a general non-solicitation provision. See NDSL v. Patnoude, 914 F. Supp. 2d 885, 894–95, (W.D. Mich. 2012); Bankers Life, 83 N.E.3d at 1091; Invidia v. DiFonzo, No. MICV20123798H, 2012 WL 5576406 (Mass. Super. Ct. Oct. 22, 2012).
Further, courts have also analyzed whether certain postings on a social media profile give rise to actionable conduct. In such a circumstance, the answer depends on the substance of the message in the post. For example, posts that indicate a change in employment or opening of a job position have been found not to be actionable conduct. See Bankers Life, 83 N.E.3d at 1091; BTS, USA v. Exec. Perspectives, No. X10CV116010685, 2014 WL 6804545, at *12 (Conn. Jud. Dist. Waterbury Oct. 16, 2014); DiFonzo, 2012 WL 5576406, at *6. But posts that encourage employees to leave their current employers, encourage certain employees to contact for an employment position, and entice clients to call for sales purposes have all been situations in which courts have decided that social media activity crossed the threshold into actionable conduct. See Coface v. Newton, 430 F. App’x 162, 164 (3d Cir. 2011); Morgan Stanley Smith Barney, LLC v. Abel, No. 318CV00141J34MCR, 2018 WL 515348, at *2 (M.D. Fla. Jan. 23, 2018); Mobile Mini v. Vevea, No. 17-1684, 2017 WL 3172712 (D. Minn. July 25, 2017); Amway Glob. v. Woodward, 744 F. Supp. 2d 657, 674 (E.D. Mich. 2010). The way in which this area of law has developed narrowly defines social media activities that are actionable for non-solicitation purposes.
Addressing Social Media Activity When Drafting Non-Solicitation Agreements
Businesses are left in a position where a great deal of social media activity does not qualify as actionable unless the business specifically contracts to address it. Courts have recognized that, “[a]bsent an explicit provision in an employment contract which governs, restricts or addresses an ex-employee’s use of such [social] media, the court would be hard pressed to read the types of restrictions urged here, under these circumstances, into the agreement.” BTS, USA, 2014 WL 6804545, at *12 (emphasis added).
But businesses can, and should, still take measures to restrict passive social media activity that would otherwise be permissible, by carefully drafting non-solicitation agreements to reasonably restrict employees from “friending” or “connecting” with customers, clients, or patients of their former employers on social media. Businesses can protect their legitimate business interests by specifically detailing the types of social media activity that would be an improper solicitation or competition. By having employees agree that passive social media activity will be deemed a solicitation, employers can further protect their business from solicitation and put themselves in a much stronger legal position if facing this gray area in the law. As of the date of this article, no published case law could be unturned that has found these types of non-solicitation sub-provisions to be void or unenforceable. Thus, employers should implement the types of sub-provisions referenced above to better protect themselves from future violations—otherwise, “the court[s] would be hard pressed to [find] the types of restrictions urged.”
