Can A Social Media Post Constitute Solicitation in Violation of a Non-Compete Agreement?

February 27, 2014

Last fall, the business litigation session of the Massachusetts Superior Court considered whether former employee's LinkedIn profile change constituted a violation of the employee's non-competition agreement. In KNF&T Staffing Inc. v. Muller, KNF&T, a staffing agency in the Boston area, had hired the defendant, Charlotte Muller, in 2005. When Muller was hired, she signed an Employee Confidentiality and Non-Competition Agreement that prohibited her from recruiting or referring potential employees for placement in the "Company's Field of Placement" for one year within 50 miles of any of KNF&T's offices. Muller worked at KNF&T for eight years, and was eventually promoted to Vice President and manager of the plaintiff's Boston office. Muller resigned from KNF&T, and three months later joined Panther Global Group, a staffing firm in Boston and direct competitor of KNF&T in certain areas. Muller posted on her LinkedIn account that she had changed jobs, notifying her 500+ contacts of the change. KNF&T filed a lawsuit to enforce the non-compete agreement Muller had signed in 2005.

The plaintiff argued that, among other activities, Muller's updates to her LinkedIn profile constituted solicitation in direct violation of Muller's non-competition agreement. KNF&T asserted that posting her job change on LinkedIn was tantamount to notifying all of her contacts that she had left KNF&T for a competitor, and was, in part, an act of targeting contacts Muller acquired in the course of her employment at KNF&T. The court was not persuaded by the argument, finding no evidence that Muller's conduct had violated her non-compete agreement. The court denied KNF&T's motion for preliminary injunction, suggesting in a footnote that a LinkedIn post advertising a job change, does not constitute solicitation.

The court recognized that the mere description of what one does would not, in and of itself, amount to competition or solicitation of customers, even if many of the customers were "linked" to the former employee. The court did leave the door open for claims based upon other facts. Perhaps the court's decision may have been different if, within the LinkedIn profile, customers were encouraged to contact Muller.

By way of comparison, last year the United States First Circuit held that a mass e-mail to former clients announcing a departing employee's new position at another company did in fact constitute solicitation. The KNF&T decision suggests either that the Superior Court judge disagreed with the First Circuit's application of Massachusetts non-competition law, or believed that social media posts should be treated differently than e-mails when determining whether a former employee is improperly soliciting the recipients.

Presumably, neither the employer nor the employee contemplated social media as a potential outlet for "competition" at the time that the non-competition covenant was signed. Nevertheless, postings that actively solicit customers could conceivably cross the barrier into actual competition as much as a flyer or print advertisement could. Accordingly, when drafting non-compete agreements and non-solicitation agreements, employers and their counsel should make clear exactly what activities are proscribed by a departing employee. If the employer desires that the departing employee have no contact whatsoever with the employer's past or current customers, the agreement should specifically say so.