In today’s increasingly tech-savvy society, social media is perhaps the simplest and most convenient way to stay in touch with friends—and former clients, customers, and coworkers. This increased ease in connectivity is particularly troublesome for employers seeking to enforce their non-solicitation agreements and for employees wary of violating those agreements. The critical and unsettled point of contention is deceptively simple: Can social media conduct, like a Facebook wall post or a LinkedIn profile change, constitute “solicitation?”
A basic non-solicitation agreement between employer and employee generally comes into effect after the employment relationship has terminated, and it requires that the former employee refrain from “soliciting” former coworkers, clients, or customers for a specified length of time. The most commonly litigated issues in non-solicitation cases are the nuanced meaning of the term “solicitation” within the context of the particular agreement and whether an employee’s actions fall within that definition. In the world of social media interactions, defining “solicitation” becomes all the more complex.
The first Massachusetts case to entertain the issue, Invida, LLC v. DeFonzo, was decided in October 2012. In Invida, a hair stylist bound by a non-solicitation clause changed salons and her new employer posted to her Facebook wall welcoming her to the new salon. The stylist was friends with many of her former customers on Facebook, and several of them commented on the post and indicated that they would be following the stylist to her new employer. The former employer argued that because the stylist knew she was friends with many of her former clients and did nothing to limit who could view the Facebook post, her lack of action violated the agreement. However, the court was not convinced the post constituted “solicitation.” It clearly stated that the stylist did not actively solicit the salon’s customers when her new employer posted the announcement on her wall, though it did note that if the stylist herself had contacted her previous customers to tell them she was moving, that would be “a very different matter.”
The most recent case dealing with social media in this context, KNF&T v. Muller, came down one year later in October 2013. In KNF&T, an employer alleged that a LinkedIn profile update violated a non-solicitation agreement because the update triggered LinkedIn to notify the employee’s 500+ contacts (including current and former clients of her former employer) of her employment change. The employer argued that this was akin to “sending out a letter to solicit people to [the former employee’s] new business.” The court indicated that it did not view the LinkedIn update as solicitous. It focused on the fact that the employee’s new position was in a slightly different field that did not directly compete with the employer’s recruitment—the court did not address if a LinkedIn profile update could ever qualify as solicitous.
In both cases, and foreseeably in many social media cases, the courts honed in on whether the employee was “actively” soliciting restricted parties. This focus on “activeness” fits within the traditional approach to non-solicitation agreements. Courts often look first to the intent of the allegedly solicitous act, regardless of the act’s impact. However, there is an argument to be made for the equally devastating impact “passive” solicitation can have on employers and the undermining effect allowing such conduct has on non-solicitation agreements. In Invidia, the former employee could have easily restricted the visibility of her new employer’s post on her Facebook wall, mitigating its impact. In KNF&T, the former employee could have made simple changes to her LinkedIn privacy settings to prevent the mass notification of her new employment. In these cases, the courts’ emphasis on “activeness” was arguably misplaced and the spirit of the non-solicitation agreements was not fully upheld.
The takeaway from these cases is that if employers want to protect themselves from “passive” solicitation in Massachusetts, they should not look to the courts to read the concept into their agreements. A well-thought-out definition for what it means to “solicit” in the context of social media will be critical to drafting a resilient agreement unless and until the courts decide to alter their approach.