The past few weeks there have been two articles on violation of non-solicitation agreements/non-compete agreements and social media use. Specifically, the dilemma remains whether a Tweet or a LinkedIn status update that informs your friends, followers or business connections that you have moved to a new job somehow falls within prohibition and a post-employment covenant? Both articles reference the TEK Systems case I profiled several years ago, and in the book Think Before You Click.
The jury remains out on these types of postings and whether a violation has occurred is largely going to depend upon the terms of the agreement and conduct of the former employee. A Wallstreet Journal article provides the following advice which I tend to agree with:
The audience on the receiving end of the post matters. It would be tough to prove that a general update to a broad network on Facebook on LinkedIn was meant to be used to recruit old colleagues, attorneys say. But if the message is going out to a network that primarily consists of former colleagues, employer may have more of a case that the contract is being breached even if that person is not messaging previous co-workers individually.
The reality of our LinkedIn contacts is that most of them do contain former colleagues, clients, and customers and that’s why it is so difficult to claim that what would appear to be an innocuous statement like where you are going to work violates a non-compete. That said, employers might consider further defying what a solicitation constitutes and including language that prohibits such an update in a social media post. Of course then you get in the grey areas of free speech and whether such a restriction is overly broad in the first place. There are no easy answers on these types of issues, but if appropriate employers should monitor these type of post-employment communications.
(H/T to Staffing Talk for picking up on the Tweet Above)
