With a click of a button, a former employee can communicate to a large audience of connections made during his career. Such communications often involve the former employee enticing co-workers or customers to follow them to the new employer. If left unrestricted, a former employee’s social media use can damage the former employer’s customer and employee relationships. To protect relationships with employees and customers, employers should include a social media provision in their non-solicitation agreements.

What Activity Constitutes “Solicitation” or “Inducement”?

Posting general information about the employee’s new employment, without more direct communication, is generally not sufficient to breach a non-solicitation agreement, even when the employee’s activity on social media drastically increases after changing employment. But a targeted email, private Facebook message, or Facebook post on a specific page will likely enable a court to infer solicitation under most agreements. Even an email that provides an update on a party’s move to a new employer can amount to solicitation when many of the former employer’s clients are on a relatively short email list.

How much activity is not enough? In Invidia, LLC v. DiFonzo, the court found that an employer’s public announcement on a new employee’s Facebook page that the new employee was affiliated with it was merely providing “notice” and not attempting to solicit the new employee’s former clientele, even though a former client commented on the post. And a customer’s “friending” of a former employee on Facebook, even after a change in the party’s employment, did not itself amount to solicitation because more direct communication is required. The Invidia Court refused to find solicitation had occurred, despite the fact that Invidia lost 90 customers after its employee left, because Invida could not demonstrate that its former employee had solicited the customers to follow her to her new place of employment.

Does Avoiding Making the First Contact Protect a New Employer?

A crucial factor that courts consider in determining whether improper solicitation occurred is which party makes the “initial contact” in offering employment opportunities or seeking business. In Enhanced Network Solutions Group, two subcontracting companies entered into an agreement with a non-solicitation clause to protect each company’s respective employees. The Court found that one company’s job posting on a publicly available page of LinkedIn, which could be accessed by a specific public group that included employees of the other company, did not by itself violate the non-solicitation agreement, because the prohibition only applied to soliciting applications of the other company’s employees. The company could properly receive and consider applications in response to the posting without breaching the agreement. The Court focused on the fact that the employee responding to the job post had taken “all major steps” by initiating conversations with the company and requesting satisfactory terms of employment.

But new employers should proceed with caution, because courts are picking up on tactics to “manipulat[e]” or engage in “linguistic trick[s]” to transfer the initial contact to former employees or customers. In Corporate Technologies v. Harnett, the First Circuit refused to apply a bright-line rule focused solely on who made the initial contact, stating instead that a “targeted announcement that piques customers’ curiosity” could amount to solicitation in some circumstances.

Update Your Non-Solicitation Agreements to Include a Social Media Restriction

To increase the effectiveness of a non-solicitation clause, employers should define the type of conduct that constitutes “solicit,” “induce,” or “attempt to solicit/induce,” explicitly including social media communications. Otherwise, a court may be forced to turn to a dictionary for assistance in determining whether the former employee’s conduct violates the agreement. When defining the terms “solicit” and “induce,” the employer should tailor the meaning of these terms to its business and industry as well as current technology. Failure to specify prohibited conduct will allow a court to interpret the restrictions more narrowly than the employer intends.

Protect Your Employees and Customers

Employers should remind departing employees of their obligations under their non-solicitation agreement, and also monitor compliance. If the employer becomes aware of a violation, it should promptly notify the former employee and request that he stop the prohibited activity. Plan B is to seek an injunction to prevent harm to the employer’s relationships with its customers and employees. And new employers should caution new employees to comply with any non-solicitation obligations they may have to their former employer.