Consider the following scenario. Your company uses sales
representatives to sell its products. To protect your company's relationship
with its other employees, you require all sales reps to sign a no-solicitation
agreement as a condition of their employment. Under the agreement reps cannot
"directly or indirectly solicit, entice, persuade or induce any ... employee ... of
the Company ... to terminate or refrain from renewing or extending his or her
employment, association or membership with the Company ... or to become employed
by or enter into a contractual relationship" with the employee executing the
no-solicitation agreement.
If an employee connects with co-workers on Facebook or
any other social network, and then leaves your company, has he violated the
no-solicitation agreement by maintaining the connections?
According to the court in Pre-Paid Legal Services, Inc. v. Cahill (E.D. Okla.
1/22/13), the answer is, "No."
In this case, PPLSI complains that Facebook posts that
tout generally the benefits of Nerium as a product and Defendant's professional
satisfaction with Nerium constitute solicitations presumably because some of
Defendant's Facebook "friends" are also PPLSI sales associates and may view
Defendant's posts....
PPLSI has not shown any intent on Defendant's part to
solicit current PPLSI associates.... There was no evidence presented that
Defendant's Facebook posts have resulted in the departure of a single PPLSI
associate, nor was there any evidence indicating that Defendant is targeting
PPLSI sales associates by posting directly on their walls or through private
messaging.
In other words, because the employer could not
demonstrate any intent on the part of the departed employee to solicit other
employees via Facebook, the mere fact that they are Facebook friends is not
enough to violate the no-solicitation covenant. Presumably, the same logic
would hold true if the no-solicitation covenant applied to customers instead of
employees.
One case does not equal dogma (although Cahill did
discuss and agree with another similar case from an Indiana appellate court).
These cases are highly fact specific and depend as much on the court's perception
of the parties' equities as they do on the language of the challenged
agreements.
If, however, you are concerned about ex-employees using
Facebook, Twitter, LinkedIn, and other social networks to lure employees or
customers, why not include language in your no-solicitation agreement to cover
such a possibility?
"Solicitation" includes, but is not limited to, offering
to make, accepting an offer to make, or continuing an already existing online
relationship via a Social Media Site. "Social Media Site" means all means of
communicating or posting information or content of any sort on the Internet,
including to your own or someone else's web log or blog, journal or diary,
personal web site, social networking or affinity web site, web bulletin board
or a chat room, in addition to any other form of electronic communication.
By defining "solicitation" to include passive social
media connections and activities, you are at least putting yourself into a
position to have a court consider shutting down an ex-employee for maintaining
online relationships.
Visit the Ohio Employer's Law Blog for more
practical employment
law information.
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& Employment group, at (216) 736-7226 or jth@kjk.com.
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