Social media has made the world a smaller place. It is easy to communicate with individuals all over the world by simply getting on the Internet. It is important for employers and employees to consider their relationship when it comes to social media. Issues regarding how a non-compete or a non-solicitation agreement play out in the world of social networks is a still developing area of the law. Litigation has been filed by businesses claiming that former employees have violated restrictive covenants by the posts they made on social media networks. The courts have rendered varying rulings, so it is crucial for both employers and employees to carefully consider anything they post online that could potentially lead to a lawsuit.
If you consider LinkedIn, the site created to promote networking between professionals, a former employee who posts where his or her new job is could inadvertently violate a restrictive covenant. Additionally, if the employee signed a non-solicitation agreement, the former employer will have concerns that the employee’s posting could persuade key customers or clients to contact the employee at the competitor’s office. Worse, the employee’s announcement of his or her change of employment could lead to the loss of business for the prior employer. The Internet allows things to move quickly and what constitutes a solicitation is often unclear.
What can employers do? Consider drafting your restrictive covenants to mention the use of social media specifically. In other words, notify the employee that he or she should be careful with social media posts after leaving your employment. This type of notification provides the employer with more leverage if a subsequent dispute arises. Otherwise, without mentioning social networking in your employee agreement, it provides the employee the ability to argue that the prior employer is over-reaching in trying to control post-employment activities.
Only time will tell on how the courts will figure out the relationship between social media, non-compete agreements and non-solicitation contracts. Every case has unique facts, but the main focus will be on what is reasonable. The courts will look at whether the restrictions placed on the prior employee are reasonable and aimed solely on protecting the employer’s interests.
If you need assistance with drafting restrictive covenants, contact the legal team at The Swenson Law Firm to schedule an initial consultation.