Can Facebook Posts Violate a Non-Solicitation Agreement?

by DonaldScarinci@yahoo.com on March 25, 2013 · 0 comments

in Labor and Employment Law,Legal News and Trends,social media for lawyers

The relationship between employment agreements and social media continues to break new legal ground. In Oklahoma, a federal court recently considered whether a Facebook post violated a former employee’s non-solicitation agreement.

The defendant, Todd Cahill, was a regional manager of Pre-Paid Legal Services. Because the position allowed Cahill to access trade secrets and other confidential business data, he was required to sign a number of employment contracts, including a non-solicitation agreement. It stated:

The Regional Manager shall not . . . directly or indirectly solicit, entice, persuade or induce any individual who presently is, or at any time during such period shall be, an employee, sales associate or member of the company . . . to terminate or refrain from renewing or extending his or her employment, association or membership with the Company . . . or to become employed by or enter into a contractual relationship with Regional Manager or any business with which Regional Manager is affiliated.

After leaving Pre-Paid Legal Services and joining a new firm, Nerium, Cahill posted several messages to his personal Facebook account about his new company. He also sent invitations to Pre-Paid Legal associates to join Twitter, but not to specifically follow his account. His former employer filed a lawsuit alleging, among other claims, that Cahill’s social media activities violated the non-solicitation agreement.

In a precedential ruling, the court rejected the claim. In reaching its decision, the court noted that while there was no controlling authority dealing squarely with the interplay between social media and solicitation, there was some guidance in the case law from other jurisdictions. It pointed to two prior cases in which courts rejected non-solicitation arguments based on online posts.

In a Massachusetts case, the court found that Facebook posts announcing a new employment situation and “friending” clients of a past employer did not violate an employee non-solicitation agreement. Meanwhile, an Indiana court found that posting a job opportunity on LinkedIn that could be viewed by former co-workers also did not constitute “solicitation.”

In this case, the court found that Facebook posts touting the benefits of Nerium as a product and Defendant’s professional satisfaction with Nerium were equally as harmless. “Defendant’s actions in this case are less explicitly inviting professional interest in Nerium than the act of posting a job opportunity on a social networking page that could, and likely would, be viewed by employees that an individual was contractually prohibited from soliciting.” It further held that his posts were  similar to the Facebook announcements in the Massachusetts case that were not found to be solicitations.

Accordingly, the bar is set fairly high when it comes to solicitation via social media. Just because former associates and co-workers may be able to view public tweets or posts, that does not mean a violation has occurred.

 

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