By Mark F. Kluger and William H. Healey
Who would have thought that Linkedin, an innocent professional networking site, could be at the center of so much legal trouble. At the end of July, a federal court in Minnesota found that an employee’s Linkedin posts likely violated the non-solicitation agreement with her former employer and issued a preliminary injunction against her continued use of Linkedin or any other social media to seek business for her new employer.
The employee, who had voluntarily resigned in November 2016, had restrictive covenants against joining a competitor for 6 months, selling to customers of the former employer for 9 months and soliciting customers for 12 months. In May 2017, the employee updated her Linkedin status to show her new employer, described the nature of the business, which did compete with her former employer, and concluded with: “Give me a call today for a quote.” Six days later she added a similar post encouraging calls.
In the lawsuit, the former employer, seeking an injunction against the employee and her new employer, argued that if her 500+ Linkedin connections included just one of its customers, she had violated the 12 month restriction against solicitation. The court agreed and described the posts as “blatant sales pitches” and “not mere status updates” which if they were, would not likely be a breach. According to the court, determining whether a social media post is a solicitation depends on its substance.
That decision follows a somewhat similar case from 2011, in which a former CEO with a non-compete and who clearly had no social life, posted on Facebook: “non-compete ends on 12/31/10 & I have decided the USA needs another excellent…Commercial Collection Agency.” The company with whom he had the non-compete and non-solicitation, would have preferred that he posted a selfie showing how great his life is, like everyone else does, and they sued him to prove it. In fact, among the evidence that the court cited in issuing the injunction against that former employee was the multiple friend requests he sent to employees of his former company, inviting them to apply for jobs at his new company. What a sad way to get “friends” on Facebook or anywhere.
By contrast though, a few years ago, a Connecticut court said that an employee’s posting of his new job on Linkedin as a status update did not violate his non-solicitation agreement. The court noted that the site auto-generated an announcement and that there was no evidence as to how many people, no less, customers of his former employer, saw the announcement; only those Linkedin users whose setting allow such notifications had the potential to see it and the notices are a common Linkedin feature requiring no special effort by the employee. The important lesson here is that you can shut off those annoying announcements. Actually, the important lesson is that the court said that it would not issue an injunction in part because if the employer wanted to prevent a social media announcement of a former employee’s new position, such a restriction would need to be explicitly stated in the non-solicitation agreement.
This may be a good time to amend your non-competes and non-solicitation agreements to add restrictions on post-employment uses of social media.
So we know most of you only read this far because of the promise of naked pictures. Here’s what happened: a Managing Director of SunTrust Bank recently came up with a unique use of Linkedin for recruiting employees. According to the lawsuit recently filed in California, the Managing Director sent a private message through Linkedin to another banking professional, who he had met while working on a deal, informing her of an available position that he thought might interest her. Apparently she messaged him back at an hour that prompted the following response from him: “So what are you doing up so late? Here’s my number if you wanna play.” Of course everyone knows that “yes I may be interested in that job” after 11 p.m. means, “I want to have phone sex” or at least it does in one banker’s mind. And then came that ultimate, never fails recruiting technique…wait for it…the picture of his genitalia through Linkedin messaging. Don’t you just wonder why, why, why do people keep thinking that hitting send on that photo is a good idea? Because you always hear women say things like… and then he sent me the picture of his genitalia and we’ve been together ever since. Or our favorite, and that’s how I met your father.
The interesting issue though is that the unfortunate recipient of that exchange has sued Mr. Smooth’s employer and the question for the court will be whether it can be held responsible for his behavior. By the way, it is important to remember that because communications through social media (even private messaging), just like any other form of electronic communication, are easily downloaded, saved or retrievable, mistakes – even if of the heart – can be forever. By the way, when the recruit failed to respond to the message and picture, the banker got the hint and wrote: “Ugh, I guess I screwed up 🙁 bummer dude.” Only in Cali!