Social Media Are a New Place for Illegal Employee Solicitations by Former Colleagues, New Employers
Online social networks open a new frontier for breaking promises in noncompete agreements not to entice colleagues to come over to new companies, employment law experts said Wednesday. The subject is “a real hot area” in employment law, said Bernard Fuhs of the Butzel Long law firm. “The case law is still developing. There’s not much out there.” It’s the substance of a communication that determines whether there’s a breach, not the medium, he and others said on an American Bar Association webcast. An update, posting or message on a social network can qualify as a solicitation, even if takes the form of a “passive” message about job opportunities, Fuhs said.
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A statement online doesn’t have to be specific or targeted to constitute solicitation, according to a 2010 ruling by a federal trial judge in Michigan’s Eastern District. A blog statement to former colleagues by a sales representative who had defected to a competing company that “if you knew what I know, you would do what I did” was “an open invitation to follow him to his new company” under the holding in Amway Global v. Woodward, said Cynthia Sass, who has her own law office in Tampa, Fla. But a company’s untargeted Craigslist ad of job opportunities was held last year by the Court of Appeals of Indiana not to be a solicitation of a partner company’s employees in breach of an agreement between them, she said.
The departed employee in Coface v. Newton would have been fine if he had confined information on LinkedIn to his new position and the date his nonsolicitation agreement ended, Sass said. But he went considerably further in promoting the company and communicating with former colleagues about work there, she said. So, the 3rd U.S. Circuit Court of Appeals last year affirmed a preliminary injunction against his activity, Sass said.
An employee, especially a high-ranking one, could be in hot water if a new employer recruits Facebook friends after the hire tells the new company those friends are not happy at their current company, Sass said. “He could be on the hook,” she said. So could the new company, said Stephanie Fong of Morrison & Foerster. In that role, “you need to be very, very careful about how you solicit these people.”