Non-solicitation clauses present a good example of the difficult issues raised by social media.
Many employees, particularly salesmen, sign non-solicitation agreements. Those agreements often say nothing more than that the employee may not solicit the company’s customers for a designated period. (Other agreements bar the employee from performing any work for the company’s customers after the termination of the employee’s employment, but these more restrictive agreements aren’t the focus of this blog.) Absent additional facts or more specific language, these narrow non-solicitation agreements often are construed to prohibit only the initiation of contact with the company’s customers.
Before the Internet and social media, these narrow non-solicits often meant that the employee couldn’t make a direct personal appeal (e.g.a phone call) to the company’s customers. An employee could, however, announce his association generally with his new employer. The company’s customers then could initiate contact with the former employee, and the former employee arguably could serve the customer without violating his narrow nonsolicit.
Social media adds a new layer of complexity to these cases. Once an employee leaves a company, for example, he may post an announcement on his LinkedIn page that tells all his contacts about his new position. The employee’s contacts may include many of the customers that he served for his former employer. If the employee is clever, he may, before he leaves, expand his contacts to include all of the company’s customers that he knows. Even if the employee doesn’t intend to mask his intentions with social media, he may give notice to many customers when he changes the biographical information about his employment on LinkedIn.
Upset employers have argued that former employees have violated their non-solicitation agreements by making announcement in LinkedIn that are directed, in part, to contacts who are the company’s customers. Employees, on the other hand, have insisted that an announcement on social media, like LinkedIn, really isn’t the same as a phone call.
To our knowledge, there haven’t been any cases in Colorado about whether a LinkedIn posting or something similar would result in a violation of a simple non-solicit agreement. In other states, courts generally have been skeptical of employers’ arguments that these postings alone constitute a violation of non-solicit agreements. Of course, the resolution of all these cases depends on the language in the non-solicit and the employee’s conduct. But courts generally seemed to want more than a LinkedIn posting before they find that a violation of a simple non-solicitation agreement has occurred.
To be sure, employers will be motivated to draft new language that clarifies the nature of the restrictions imposed by a non-solicit on an employee’s use of social media. Any new language would, however, need to comply with Colorado’s Facebook Law and the underlying purpose of the noncompete statute.