Issues in Post-Employment Solicitation and Social Media

A highly contextual analysis can be necessary to determine whether a communication constitutes a solicitation. See Edward D. Jones & Co., L.P. v. Kerr, 415 F. Supp. 3d 861, 873 (S.D. Ind. 2019). This contextual analysis continues to develop as courts are frequently asked to determine whether former employees are violating their customer and employee non-solicitation obligations through social media. In answering these questions, courts are applying traditional assessments to novel fact patterns in an evolving landscape. For practitioners, it is important to be mindful of the specific types of communications that can occur across social media platforms, as well as how courts in different jurisdictions have treated those communications in light of non-solicitation covenants and the applicable law.

One recurring issue is whether an employee breaches their non-solicitation covenant by posting about their new employment on social media. Some courts found that general, untargeted posts did not violate the covenants at issue. See, e.g., USI Ins. Servs. Nat'l, Inc. v. Ogden, 371 F. Supp. 3d 886, 897-98 (W.D. Wash. 2019) (updating a LinkedIn profile to reflect a change in employment, without more, did not violate a customer non-solicitation clause); Invidia, LLC v. DiFonzo, 2012 WL 5576406, at *5 (Mass. Super. Oct. 22, 2012) (Facebook post announcing an employee’s new position was not a solicitation). By contrast, in Am. Home Shield Corp. v. Specter, 2019 WL 4935459, at *1–2 (W.D. Tenn. Apr. 25, 2019), a court enjoined an employee who was subject to a non-solicitation covenant based, in part, on the following Facebook post:

I hope all the real estate agents that are reading this will give me a shot and keep working with me! ... You all gave me a shot 4-5 years ago, I urge you to give me another ... I hope we can continue working together!

Similarly, in Mobile Mini, Inc. v. Vevea, 2017 WL 3172712, at *2, 6 (D. Minn. July 25, 2017), a court enjoined an employee based, in part, on its finding that the following LinkedIn post “likely” amounted to solicitation in violation of the employee’s agreement:

I'm excited to have joined the Citi-Cargo Sales Team! We lease and sell clean, safe, and solid storage containers and offices. We are locally owned and operated, with local live voice answer. We offer same day delivery to the Metro, and have consistent rental rates with true monthly billing. Give me a call today for a quote.

Courts have also looked at other routine aspects of social networking to determine whether employees breached non-solicitation obligations. With respect to adding new connections, one court noted that an employee “can be Facebook friends with others without soliciting…” DiFonzo, 2012 WL 5576406, at *6. Another court found that sending generic invitations to former colleagues to connect on LinkedIn did not violate the employee non-solicitation covenant at issue. See Bankers Life & Cas. Co. v. Am. Senior Benefits LLC, 83 N.E.3d 1085, 1091 (Ill. App. Ct. 2017). Moreover, “tagging” a former employer’s customer in a social media post may not violate a non-solicitation obligation. See Herrick v. Potandon Produce, LLC, 2016 WL 6824364, at *2 (D. Idaho Nov. 17, 2016).

While each case should be viewed uniquely, with an eye on the specific language in the covenant, the applicable law, and the conduct at issue, these cases highlight how courts have been treating social media communications for employees subject to non-solicitation agreements. As social media continues its momentum—with new platforms and services being introduced—practitioners should stay abreast of these developments in order to properly assess post-employment compliance with non-solicitation obligations.