Most of you know the LinkedIn basics: a user sets up a profile including current and past employers and invites anyone to become a “connection”, the LinkedIn equivalent of a Facebook “friend”. Then, they “endorse” each other’s skills and expertise (and, btw, thank you for all those endorsements which brighten my day!). But, what happens when an employee bound by a non-competition agreement actually violates the agreement by going to work for a competitor and then updates his profile to reflect the new employment? Of course, many of those “connections” happen to be contacts or clients she had through employer #1. The result is my least favorite word: LITIGATION!
In a recent Massachusetts case, a staffing firm sued the former employee and her new employer after she updated her LinkedIn profile, sending a notice to over 500 contacts, including current and former clients of the past employer. It contended that updating a LinkedIn profile was equivalent to mailing a solicitation letter to all the listed clients. Fortunately for her, the court concluded that as long as she did not solicit or accept business in competition with employer #1, she had not violated the covenant not to compete.
The courts have provided very little guidance as to whether a LinkedIn, Facebook, blog or other social media post could constitute a breach of a non-competition agreement. There is a definite reluctance on the part of the judiciary to limit 1st Amendment freedom of speech which resounds in the tentative and narrow rulings to date.
Have you read the terms of your non-solicitation or non-competition agreements recently? Consider revising the language to protect your interests by requiring departing employees to break LinkedIn connections with customers, vendors and co-workers. The state of employment law is in such flux that standard agreements can no longer be accepted on face value as to burgeoning areas of the law such as consequences of social media relationships. That can only be done by constantly evolving the documentation to fit the technology of the moment.
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