It is always worthwhile to talk about current developments in the area of social media and employment law, and to look back at their contextual import. Much of the fun, however, lies in playing the forecasting game, and identifying potential trends in the area that may be on the horizon. One of those trends that I have surmised would be coming relates to the impact of social media on non-compete and non-solicit agreements entered into by your company’s (former) employees.
Here’s the not-so-hypothetical-anymore hypothetical: Senior employee signs an agreement that prohibits her from soliciting your client’s customers; employee subsequently leaves your company; employee updates her social media profiles to indicate to all 17,548 friends and followers that her job status and location have changed; one of your customers (i.e., one of employee’s friends and followers) sees the social media update and decides to bring her business to your former employee’s new company. Anything wrong with that from a legal standpoint?
The use of social media to regularly post about one’s entire life is nothing new. Yet, one of the burgeoning uses of social media continues to be for business and professional networking, which unabashedly requires one to maintain the current status of one’s online curriculum vitae. And there we go again. Like the employment law worlds of harassment and wage and hour, rules pertaining to the enforceability of non-compete and non-solicit agreements have been in place for years. Those rules now have to play catch up with the introduction of social media to that world as well. Not a lot has happened – yet – although courts are going to start addressing this issue with greater frequency. Two recent cases out of Massachusetts offer a glimpse of where they may be heading.
In KNF&T Staffing, Inc. v. Muller (Superior Court of Massachusetts), a staffing agency sued a competitor and the agency’s former vice president who began working for the competitor. At issue was a somewhat typical confidentiality and non-compete agreement that prohibited the former employee from engaging in certain post-separation activities. As is usual in these cases, the staffing agency sought an immediate injunction, though the court found its evidence at the initial stage to be “somewhere between very weak and non-existent.” The relevant part of the decision is tucked neatly in footnote 5 of the decision, which reads:
“The same reasoning applies to the evidence that Muller currently has a LinkedIn profile disclosing her current employer, title, and contact information, and counting among her “Skills & Expertise” such things as “Internet Recruiting,” “Temporary Staffing,” “Staffing Services,” and “Recruiting.” There is no more specific mention of any of KNF&T’s “Fields of Placement” than this. So long as Muller has not and does not, prior to April 12, 2014, solicit or accept business in the Fields of Placement for herself or others (including her new employer), she will not have violated the covenant not to compete.”
The second case of Invidia, LLC v. DiFonzo (Superior Court of Massachusetts) steps out of the footnote and into a more textual description of a similar claim involving a former salon worker who left her employer (the plaintiff) to work at another salon. Though lengthier, the relevant portion of the decision is equally instructive:
“Four days after Ms. DiFonzo resigned from Invidia, David Paul Salons, her new employer, posted a “public announcement” on Ms. DiFonzo’s Facebook page, noting DiFonzo’s new affiliation with David Paul. . . . In the comment section below that post, [a client of Invidia] posted a comment which said, “See you tomorrow Maren [DiFonzo]!” [The client] then canceled her appointment at Invidia for the next day. But it does not constitute “solicitation” of Invidia’s customers to post a notice on Ms. DiFonzo’s Facebook page that Ms. DiFonzo is joining David Paul Salons. It would be a very different matter if Ms. DiFonzo had contacted [the client] to tell her that she was moving to David Paul Salons, but [there] is no evidence of any such contact.
“Invidia next points out that Ms. DiFonzo has become facebook “friends” with at least eight clients of Invidia. Again, one can be Facebook friends with others without soliciting those friends to change hair salons, and Invidia has presented no evidence of any communications, through Facebook or otherwise, in which Ms. DiFonzo has suggested to these Facebook friends that they should take their business to her chair at David Pail Salons.”
Both cases: While the litigation may still continue, both requests for immediate injunctive relief were denied based on a lack of evidence that the restrictive covenants had been violated.
Employer Take Away: What should you as an employer take away from this development?
It is hard to form any real conclusions just yet, but these two cases suggest that a non-compete and non-solicit agreement may not be violated simply by the mere posting of your former employee's new job information and location. Rather, in the eyes of at least these two judges, a more targeted and less generalized communication must be shown between the former employee and the third party to sustain a claim.
Will future cases be decided the same way? Are there effective strategies to still avoid certain employee post-separation posts on social media? Stay tuned….