How to Navigate the Intersection of Non-Solicitation Agreements and Social Media

Activity on social media such as LinkedIn and Twitter can really complicate non-solicitation agreements. In this age of social media where users receive notifications for everything from status updates to profile changes to trending tweets, how is an employer supposed to know when a former employee is breaking their promise not to solicit clients or coworkers?

The world of social media is constantly evolving, and the law related to these issues is doing its best to keep up. While there is certainly no statutory guidance on breaches of non-solicitation agreements through social media activity, courts have begun to wrestle on a case-by-case basis with how to balance the interests of employers with the interests of employees in this context.

The main factor courts have been considering in non-solicitation disputes involving social media is whether the nature of the activity is passive or active. Passive activity would include things such as updating an employer or job title, changing an email address, or having a new employer announce that you've been brought on board. Even general marketing of a new employer's products or services or posting a job opening for a new employer have been found to be "passive" activities. Such activity is published across a user's social network and is distinguished from actively seeking out former clients or coworkers.

But where a former employee directs social media activity with the purpose of soliciting, that employee has likely engaged in active use and may likely be found in violation of a non-solicitation agreement. Such activities might include using social media to set up business meetings with former clients or coworkers, an online chat with a former coworker about leaving the company, or inviting former clients to work with you again through a direct message.

What can employers do to put themselves in the best position to prevail on this potential issue? Review the language of the non-solicitation agreement being used. How is solicitation defined? Is there a discussion about post-employment social media use? Are restrictions on post-employment social media use appropriately tailored so a court would find them reasonable and enforceable? Non-solicitation agreements are not going by the wayside, but neither is social media. Being aware of the potential issues social media creates and how it's analyzed in non-solicitation disputes is critical to assessing whether a former employee has indeed breached an agreement.