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Social Networing covered by Non-Solicit clause?

June 19, 2012

Question:

Jennifer,

If a doctor leaves my practice and has a restrictive covenant that includes a non-solicitation clause for X months or years after termination, what happens if patients are "connected" to the doctor via social media and the doctor contacts that patient via a social media blast.  While not directly targeting patients from the "old" practice, would that be considered a violation of the non-solicitation provision?  If so, how can this be reasonably prevented since patients may use false names on social media profiles?

Thanks,
Dr. S

Answer:

Dr. S, thank you for bringing this question to light.  I actually just last week drafted a non-solicitation provision for a client covering social media, and it’s the first I've seen.  Our office reviews hundreds of employment contracts per year for residents and fellows leaving training, and seasoned practitioners joining hospitals, mega-groups and small practices, in addition to those we draft for our employer clients, and this issue is just is not being dealt with.  As interpreted under applicable case law and in application now, the rule of thumb with a non-solicitation provision that reads approximately as follows: during the term of this agreement and for 2 years thereafter you shall be prohibited from soliciting the patients, is this, a non-solicitation means just that, you cannot actively solicit.  So when asked by an client-employee leaving a position whether they can contact patients, my answer is you are not allowed to proactively reach out to patients, or take any action to patient contact information from the position you are leaving.  The employer you are leaving does have an obligation to provide your contact information if on hand and requested, however, there is no guarantee the employer will abide by their ethical responsibility.

Now, is changing a facebook status affirmatively reaching out to your patient population, where a patient has either solicited the employee to be a "friend" or the patient has accepted a friend request?  May an employer prohibit an employee from posting work place information or accepting patients as friends on facebook or other relation on other social networking sites?  I would argue there is a higher likelihood of an employer being able to prohibit as a term of employment an employee for accepting or soliciting patients on social media during the employment, as opposed to enforcing any such prohibition after the fact.  So, what does this mean?  It means in my opinion if you are concerned about this issue on either side - employer or employee, you should address what is or is not considered appropriate and allowable when it comes to social media and patient contact.  I recommend working this issue out and memorializing the arrangement in writing.  The employer may not be able to police this policy 100%, as Dr. S points out patients use false names on social media, however, I would argue those individuals are fewer and further between.

Copyright © 2012 by Kirschenbaum & Kirschenbaum PC.

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