This article was principally authored by Nola Garcia, a student at Michigan State University College of Law and a 2012-13 summer associate at Honigman Miller Schwartz and Cohn LLP.
A growing body of case law addresses the use of social media to solicit customers or employees from previous employers. Generally, courts have held that inviting former clients, co-workers, or employees to join social networks does not constitute solicitation.
What is Solicitation?
Multiple courts have held that generic invitations to join a social network or posting information on a public “wall” do not constitute solicitation for purposes of non-solicitation agreements. A federal court in Oklahoma held that posts on an individual’s public Facebook page did not constitute solicitation of employees of that individual’s previous employer. That court also held that a former employee’s mass invitation to join Twitter did not constitute solicitation because it was merely a general invitation to join the Twitter social network, not an invitation to follow the defendant’s personal Twitter feed. Pre-Paid Legal Servs. Inc. v. Cahill (E.D. Okla. Jan. 22, 2013); see also NDSL, Inc. v. Patnoude (W.D. Mich. Dec. 7, 2012) (holding that sending mass social media invitations to join certain social media networks does not constitute solicitation).
In Enhanced Network Solutions Group v. Hypersonic Technologies Corp. (June 30, 2011), the Indiana Court of Appeals held that posting an advertisement for an open job position on LinkedIn did not violate the terms of a subcontractor agreement, though the posting led to Hypersonic hiring an Enhanced Network Solutions (“ENS”) employee. ENS hired Hypersonic as a subcontractor and included an employee protection clause in the subcontractor agreement. The employee protect clause barred the parties “from soliciting or inducing, or attempting to solicit or induce, any employee of the other [p]arty in any manner that may reasonably be expected to bring about the termination of said employee toward that end.” Hypersonic posted an open job position on its LinkedIn page and an ENS employee contacted Hypersonic about the position. After meeting with Hypersonic, the ENS employee accepted a position with the company.
The court held that Hypersonic did not induce or solicit the ENS employee by posting the job position because the job posting could be seen by anyone who belonged to Hypersonic’s LinkedIn group. The agreement between the parties did not define the terms “solicit” or “induce” and, in a footnote, the court stated that ENS could have avoided this issue by including language in the agreement that banned the other party from “accepting or considering applications from the other party’s employees.”
A Massachusetts court held that former employees cannot actively solicit former clients by directly contacting them, but are not barred from expanding their social network. Invidia, LLC v. DiFonzo, No. MICV20123798H, 2012 WL 5576406, at *1 (Mass. Super. Oct. 22, 2012). DiFonzo, signed a non-solicitation agreement with her employer, Invidia, and worked for Invidia for nearly two years. After ending her employment with Invidia, DiFonzo accepted a position at David Paul Salons. David Paul Salons posted on DiFonzo’s Facebook page announcing that she was joining the company. One of Invidia’s clients saw this post, cancelled her appointment at Invidia, and scheduled an appointment with DiFonzo at David Paul Salons. The court held that David Paul Salons’s post on DiFonzo’s Facebook page did not violate the non-solicitation agreement because David Paul Salons created the post. The court stated, “It would be a very different matter if Ms. DiFonzo had contacted [the client] to tell her that she was moving to David Paul Salonss, but [there] is no evidence of any such contact.” The court also held that DiFonzo could send friend requests to Invidia’s clients because “[s]o long as [Invidia’s clients] reached out to Ms. DiFonzo and not vice versa, there is no violation of the non-solicitation provision of the Agreement.”
Employer Protections Against Solicitation
To date, courts have tended to favor the former employee when determining whether a former employee’s actions via social media violated a non-solicitation agreement. In most of these situations, however, the employers did not have adequate policies governing their employees’ use of social media in relation to their employment. Employers who are concerned about solicitation of social media contacts by former employees may take steps to protect those relationships, such as by adopting specific policies governing the creation, use and ownership of social media accounts. Concerned employers would benefit from the advice of knowledgeable, tech-savvy counsel to make sure the employers’ policies are adapted to their specific business realities.