Can a former employee breach a nonsolicitation agreement by posting his new job on his Facebook page or inviting former colleagues to connect with him on LinkedIn? It turns out that it depends on the nature of the communication. An Illinois appellate court recently considered the role social media plays in the world of corporate non-compete agreements.
Gregory G. was a branch sales manager in the Warwick, Rhode Island, office of Bankers Life, an Illinois company that sells insurance and financial products to seniors. In 2006 Gregory signed a non-compete agreement that barred him from soliciting any employee or client of that office for two years after his employment ended. Gregory left Bankers Life in 2015 and later joined its competitor, American Senior Benefits LLC, as a senior vice president.
In a breach of contract complaint, Bankers Life alleged that Gregory attempted to recruit employees from its Warwick office by sending LinkedIn invitations to three former co-workers, who would be able to see a job posting for his new employer on his LinkedIn profile page.
In his summary judgment motion, Gregory claimed he never used LinkedIn to send direct messages to Bankers Life agents or employees in the Warwick area regarding ASB or any other professional opportunities. Instead, all the individuals on his email contact list were sent generic LinkedIn messages asking them to connect with him on the social media site. However, Bankers Life alleged that text messages between Gregory and another ASB employee revealed that Gregory intentionally used LinkedIn as a recruiting tool.
The circuit court found no showing that Gregory had solicited Bankers Life employees or otherwise breached his non-compete agreement, and granted summary judgment in his favor.
On appeal, the First District court cited decisions of other state courts that have considered whether social media activity violated an employment contract. Connecticut, Indiana, and Massachusetts courts have determined that merely posting an announcement of one’s new job or a new employer’s product or job opening on Facebook or LinkedIn, or “friending” former customers and co-workers, did not violate a nonsolicitation clause especially when there was no evidence they had formed a relationship with the new employer as a result.
On the other hand, a 2011 Third Circuit federal court decision upheld an injunction against a defendant who was found to breach a non-compete covenant when he formed his own company and posted on Facebook that his non-compete period was about to end, openly soliciting applications for employment. A Michigan court, in finding against a defendant employee, stated: “[I]t is the substance of the message conveyed, and not the medium through which it is transmitted, that determines whether a communication qualifies as a solicitation … communications qualifying as solicitations do not lose this character simply by virtue of being posted on the Internet.” (Amway Global v. Woodward, 744 F. Supp. 2d 657 (E.D. Mich. 2010)).
The First District concluded that Gregory’s case was more similar to the former set of cases than the latter, in that the social media communication reflected that the employee changed jobs, identified the new employer, and provided an example of the employee’s work, as opposed to actively and openly urging former coworkers to leave the former employer.
The generic messages sent from Gregory’s LinkedIn account “did not contain discussion of Bankers Life, no mention of ASB, no suggestion that the recipient view a job description on [his] profile page, and no solicitation to leave their place of employment and join ASB. Instead, the e-mails contained the request to form a professional networking connection,” the court wrote in its opinion.
“It makes no difference that [Gregory] acknowledged that he used LinkedIn to evaluate potential recruits from other geographic areas … To violate his contract, [he] would have to actually, directly recruit individuals working in the Warwick, Rhode Island area,” which he did not do.
Our Chicago non-compete agreement attorneys have defended high-level executives in a covenant not to compete and trade secret lawsuits. A case in which our firm defended a former Motorola executive was covered in Crain’s Chicago Business. You can view that article by clicking here.
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DiTommaso Lubin Austermuehle’s Oak Brook, Bollingbrook and Lake Forest litigation attorneys have more than three decades of experience helping clients unravel the complexities of Illinois and out-of-state non-compete and trade secret theft laws. Our Chicago business dispute attorneys also represent individuals, family businesses and enterprises of all sizes in a variety of legal disputes, including disputes among partners, shareholders, and LLC members as well as lawsuits between businesses and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping business clients protect their investments and get back to business as usual. From offices in Oak Brook, near Hinsdale and Naperville, we serve clients throughout Illinois and the Midwest.