Can posting a new job on Facebook or LinkedIn violate non-compete employment contracts?
A hairdresser switches salons. She announces the change on Facebook. Previous clients find her. The old salon sues, claiming the post solicits their customers, violating non-compete and non-solicitation agreements signed by the hairdresser.
The Vice President of a professional recruiting firm joins a new agency. She announces the change on LinkedIn. She’s accused of breaching the one-year non-compete agreement she signed with the first firm.
People ask about non-compete agreements, often assuming they’re unenforceable. It’s true the law generally disfavors restraints on trade or competition. But, restrictive covenants are valid and enforceable if deemed reasonable in the circumstances.
When Are Non-Compete Agreements Reasonable?
Employers have a legitimate interest in protecting trade secrets and contacts employees develop during their employment. Courts in most states balance whether restrictions are greater than required to protect the employer’s legitimate interests against whether undue hardship is imposed on the employee.
What about the hair dresser who posted her new job on Facebook and also friended some of her former customers? Here, the court refused to issue an injunction, holding that such actions failed to rise to the level of solicitation. In Invidia, LLC v. DiFonzo, decided in October, 2012 the Middlesex County, Massachusetts Superior Court also held that any good will generated by the hair dresser with her customers belonged to her, not the salon.
Could the job recruiter announce her new position on LinkedIn, considered a more career oriented social media site? Her old company sued to enforce the one-year non-compete agreement she signed. The company claimed the former V.P. solicited their customers when she changed her LinkedIn profile, reaching 500 contacts including many customers.
The court held no direct competition and refused to issue an injunction. The court called the evidence “between weak and non-existent” in a decision announced in October, 2013 in KNF&T Inc. v. Muller by the Suffolk County, Massachusetts Superior Court.
The executive’s online profile update was apparently unspecific enough, using vague terms like staffing services and recruiting, avoiding reference to the specialty fields targeted by the previous employer. The court’s decision applied narrowly to these facts.
What’s the Law on Social Media Postings on New Jobs?
Cases seem to indicate that just posting new jobs on social media profiles and pages aren’t enough to violate non-compete provisions. They go out to all contacts including old classmates and relatives. Courts appear to look for some further overt act targeted to specific customers. But, such cases are generally based on the specific facts presented, with little if any precedential value.
While there was no preliminary injunction issued against the hairdresser or her hew salon, the new boss terminated her as soon as he heard of the legal trouble. So, she won, but she lost at the same time.
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Adapted and expanded from an article © 2013 Eagle-Tribune Publishing Co. by Andrew D. Myers, appearing in the Derry News.
Andrew D. Myers is a Personal Injury and Bankruptcy attorney in Massachusetts & New Hampshire who answers questions in other areas when asked.
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