When Your Former Employees Post on Social Media, Are They Breaking Your Non-Compete Agreement?

Employers and HR managers take note: a former employee’s LinkedIn post could undermine the non-solicitation agreement she signed before leaving the company. Case in point, from attorney Rebecca Rizzo of Pillsbury:

“[I]n KNF&T v. Muller, the Massachusetts Superior Court found that a LinkedIn update regarding an employee’s new job was not a solicitation of business in violation of her non-competition agreement, which also prohibited solicitation. … [T]he court … [found] that the former employee’s LinkedIn update notifying more than 500 contacts about her new job, including contacts she established during her nearly 8 years with her former employer, was not a an impermissible solicitation.”

According to Rizzo, in recent lawsuits courts have focused on the intent of employees – not the potentially negative effects of their posts – when determining whether the use of social media violates a non-solicitation provision:

“The case law that has addressed this issue over the past few years focuses on whether the former employee has proactively used social media to encourage former colleagues to come to work for, or encourage former clients to give business to, his or her new employer.”

And that means it’s time to revise your agreements:

“Employers should be mindful of the implications of social media for the protection of their trade secrets and good will and may consider directly addressing the use of social media in their non-competition and non-solicitation agreements with their employees.”

Read the update: “Solicitation” In the Era of Social Media Remains Unsettled>>

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