LinkedIn Activity May Violate Non-Solicitation Agreements

Q: A former employee has invited some of her former co-workers and clients to connect on LinkedIn. Is this a violation of her non-solicitation agreement with our company?

A: It depends. In general, a generic invitation to connect will not be viewed as a violation of a non-solicitation agreement.  However, if an invitation is accompanied by a personalized message or other targeted communication, it likely will be viewed as a violation.

In recent years, non-solicitation allegations have increasingly centered around the use of social media, and most prominently, LinkedIn. Employees argue that LinkedIn invitations are simply a way to keep in touch and maintain their professional networks.  In contrast, employers argue that LinkedIn invitations are an easy way for employees to solicit former colleagues and clients under the guise of connecting on a social network.  After the connection is made, the former colleague or client can see job postings and other information about the employee’s new place of work.  Employers contend that this is no different than an employee calling a former colleague and soliciting them to apply for a position, or calling a former client to solicit business.

In Bankers Life and Casualty Company v. American Senior Benefits, a recent case before the Appellate Court of Illinois, the court sided with the employee.  There, the employer alleged that a former employee’s invitations to three former colleagues to connect on LinkedIn violated his non-solicitation agreement.  The employer argued that, after connecting, the employees could view their colleague’s  profile, which had job listings at his new employer.  The court disagreed, holding that there was no violation of the non-solicitation agreement because the invitations to connect were generic and contained no discussion of either employer.  Additionally, the former employee did not suggest that his former coworkers view job postings at his new job or leave their employment with the company.  The court noted that if the employees accepted the connection, their next steps, which may have included viewing job postings on the new employer’s website page, were not actions for which the former employee could be held responsible.

By contrast, in Mobile Mini, Incorporated v. Citi-Cargo, a Minnesota District Court case, after resigning from her position as a regional sales representative for Mobile Mini, a former employee updated her LinkedIn profile to reflect her new position with a competitor, and posted an update describing her new employer’s business and inviting people to call her for a quote.  The court granted a preliminary injunction, holding that the employee’s postings were not, as the employee claimed, mere status updates announcing the employee’s new position and contact information, but rather were “blatant sales pitches” that were meant to “entice members of [the employee]’s network to call her for the purpose of making sales in her new position at Citi-Cargo.”  The court noted that, had the posts simply announced the employee’s new position and contact information, it was unlikely there would have been a breach.

As the cases above demonstrate, employers who want to enforce their former employees’ non-solicitation agreements should be on the lookout for employee social media activity that amounts to a sales pitch or enticement. However, a former employee who simply announces her new position and provides contact information likely will not be considered to have breached the agreement.

Pepper lawyers have seen a significant increase in both threatened and filed lawsuits relating to non-compete and non-solicitation agreements in the past year. Many of these agreements have imprecise language, which results in confusion on the part of the employee, former employer and new employer as to what kind of action constitutes solicitation, and often leads to disputes about the scope and enforceability of the provisions.  It is essential for employers to ensure they have clearly drafted non-solicitation and non-competition agreements so it can easily be determined whether a particular action violates the agreement.

Jessica X.Y. Rothenberg

 

Profanity-Laced Social Media Posts May Be Permissible in the Context of a Union Organizing Campaign

Q.  Can I fire an employee for making disparaging comments about the company and its supervisors on social media?

A.  According to a recent Second Circuit opinion, if the social media post was made in the context of union organizing activity, then the answer likely is no. The National Labor Relations Act (“NLRA”) prohibits employers from terminating an employee based on that employee’s union-related activity. If the employee’s protected activity rises to the level of “opprobrious” or abusive conduct, however, it could lose the protection of the NLRA.   Nonetheless, the standard for a finding that the employee engaged in “opprobrious” or abusive conduct is quite high.

In NLRB v. Pier Sixty, LLC, an employee posted a Facebook message encouraging other employees to vote for the union and referred to his supervisor as a “loser” and a “motherf*cker.” The employee even went to so far as to disparage the supervisor’s family, posting:  “F*** his mother and his entire f***ing family!!!!”

The NLRB found that the comment did not rise to the standard of “opprobrious” conduct because it was made in the context of an upcoming union election. The Second Circuit agreed. According to the court, even though the employee’s message was dominated by vulgar attacks on the company’s supervisor and his family, the “subject matter” of the message included workplace concerns – management’s allegedly disrespectful treatment of employees and the union election. The court also noted that the company had demonstrated hostility toward the employees’ union activities, including threatening to rescind benefits and/or fire employees who voted for the union and enforcing a “no talk” rule preventing employees from discussing the union.

Further, the court considered it important that the company had tolerated profanity in the workplace on a daily basis, issuing only five warnings in six years and not discharging anyone for using profanity prior to the employee at issue. In addition, the court said that the supervisors, including the one whom the Facebook post was directed at, cursed at employees including using the “f” word on a daily basis. The court concluded that “it is striking that Perez – who had been a server at Pier Sixty for thirteen years – was fired for profanities two days before the Union election when no employee had ever before been sanctioned (much less fired) for profanity.”

Finally, and most disturbingly for companies trying to maintain their online reputations, the court concluded that, while Facebook posts may be visible to the entire world, “Perez’s outburst was not in the immediate presence of customers nor did it disrupt the catering event.” Calling the case as sitting at the “outer bounds of protected, union-related comments,” the Second Circuit upheld the NLRB decision.

So, what does this mean for companies trying to maintain a professional workplace?

First, it crucial to apply discipline consistently.  If Pier Sixty had discharged other employees for using profanity outside of the union-organizing campaign – and prohibited its supervisors from cursing at staff – it would have had a much stronger argument that the Facebook message should not be tolerated.

Second, employers should tread carefully – and consult with counsel – before disciplining employees for social media activity, particularly in the context of union activity.

Tracey E. Diamond