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Your Social Media Account May Violate Your Non-Compete or Non-Solicitation Agreement

Recent Court Ruling Identifies How a Social Media Profile May Violate a Non-Compete or Non-Solicit Agreement

Many business owners and their employees, such as a sales representatives, consultants and account managers, regularly use their personal accounts on social media websites like Facebook, Twitter, and LinkedIn to promote their business, identify sales leads and communicate which existing or prospective clients and customers. Most people do not see much connection between their social media account and the terms of the employment or independent contractor agreement they have signed–many of which contain provisions known as ‘Restrictive Covenants’ like Non-Compete Agreements, Non-Solicitation Agreements and Non-Disclosure (or Confidentiality) Agreements. 

KNF&T Staffing Inc. v. Muller, et al

However, a recent Massachusetts Superior Court decision (KNF&T Staffing v. Muller – Memo of Decision) has put social media profiles in the line-of-fire when it comes to these Non-Compete and Non-Solicitation Agreements.

The Court’s decision denied a request for injunction by the Plaintiff, a staffing company employer against a former employee who had updated her personal LinkedIn profile with her new job title and contact information after being hired by a new staffing employer. The injunction would have forced the former employee to take down the information. The status update may have been seen by many clients of the former employer who were “connections” on the employee’s LinkedIn profile. The employer argued that the employee’s actions in updating her profile was effectively the same as if she had mailed out letters to the employer’s clients notifying them of her move to a new company – a violation of the restrictive covenant forbidding the solicitation of it clients. 

A Footnote is Worth a Thousand Words

The Court did not agree, but did not completely foreclose the possibility that an employment contract’s non-solicitation or non-competition clauses could, in some circumstances, be violated by posting something on a personal social media account. In a footnote, the Court identified what sort of conduct with respect to the employee’s LinkedIn profile could have constituted a breach of the non-solicitation or non-competition clauses and justified issuance of the injunction:

The same  reasoning  applies  to  the  evidence  that  Muller  currently  has a  LinkedIn  profile disclosing  her  current  employer,  title,  and  contact  information,  and  counting  among  her  “Skills  & Expertise”  such  things  as “Internet  Recruiting,”  “Temporary  Staffing,” “Staffing  Services,”  and “Recruiting.”  There is  no more  specific  mention of any  of  KNF&T’s  “Fields  of  Placement”  than this.  So long  as Muller  has  not and  does not,  prior  to April 12,2014,  solicit  or accept  business  in the Fields of  Placement for  herself  or  others (including  her  new  employer), she  will  not have violated the  covenant  not to  compete. (emphasis added).

In the narrow ruling, the Court found that because the two companies were not in direct competition for recruitment of professionals in certain fields of placement, the former employee had not violated her non-solicitation agreement.  But, except for the quote above, the decision did not elaborate on the more important question of whether, in different circumstances, a social media post may be considered “solicitation” in violation of an employment contract restricting competition and solicitation of clients in a predetermined geographic area and/or for a set period of time. 

Ounce of Prevention

There is very little case law on this issue at this time, but the courts are sure to be confronted with issues involving social media accounts as the lines between what is personal vs. professional continue to blur. Companies that hire employees who use social media accounts to further the business and/or accomplish their employment objectives as should strongly consider employment agreements (or independent contractor) that include language to clarify and identify company policies on the ownership and use of such social media profiles, posts pertaining to employment matters and the contacts or ‘connections’ that arise during the employment or independent contractor relationship.

Contact the business lawyers at The Jacobs Law LLC today for employment contracts and independent contractor agreements–or to review and update your existing contracts–with language that addresses the use and ownership of social media profiles, online posts and contacts or ‘connections’.

Have you also considered a cell phone use policy? After-hours emails on smart phones and cell phone calls by hourly wage employees have given rise to wage and salary cases for overtime against employers.

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