Oftentimes, employment agreements between companies and key employees contain non-solicitation provisions which, among other things, can prevent a former employee from soliciting employees of the company he is leaving to join him or her at his or her new company. This is meant to ensure the departing employee does not pilfer valuable employees from his former employer. Discovering whether a former employee has solicited company employees can be straight-forward as there may be an electronic trail or other information which reflects the solicitation. But does a former employee’s sending a request to connect on LinkedIn rise to the level of soliciting an employee of his or her former company? A recent court decisions suggests it does not.
In Bankers Life & Casualty Co. v. American Senior Benefits, LLC, a Bankers Life employee entered into a non-solicitation agreement with one of its employees which prevented him from, among other things, soliciting employees of Bankers Life after he left. The Bankers Life employee left his employment with Bankers Life and after doing so, sent requests to connect to three employees of Bankers Life. The three employees of Bankers Life accepted the requests and when they clicked on the former employee’s profile and saw his new employer had job openings as these job openings were posted on the former employee’s profile.
Based on the former employee’s actions, the Court had to consider whether the former employee’s requests to connect were a violation of his non-solicitation agreement. The former employee showed evidence indicating he had not sent any direct messages to Bankers Life’s employees but instead had merely sent LinkedIn’s standard request to connect. Based on this, the Court upheld the trial court’s ruling in the former employee’s favor noting the invitations to connect were sent through generic emails requesting the formation of a professional connection which did not reference Bankers Life, his new employer, did not request the viewer to view the job descriptions on his profile, and did not request the former employees to leave Bankers Life and come to work with him. The Court did not give much credence to the fact job postings were on the former employee’s profile as the employees whom received the request to connect had the option of declining the invitation to connect.
This ruling seems to indicate the sending of a garden variety generic invitation to connect on a social media platform may not violate a non-solicitation agreement. However, the Court did note that if a communication in a social media platform disclosed an invitation to apply for a position, that communication might rise to the level of a violation of a non-solicitation agreement. The bottom line for former employees here is if you send a routine request to connect on a social media site, you most likely would not be violating a non-solicitation agreement. Conversely, if a former employee’s communication is deemed a request to apply for a position, this may run afoul of a non-solicitation agreement.
If you have questions regarding your obligations under an employment agreement, feel free to contact me at 847-241-1774 or firstname.lastname@example.org.