the company. The court, however, was
unpersuaded. Bergmann's posts did not
constitute a solicitation or breach of his
employment agreement, the court held.
Significantly, the court noted that his
announcement of his new employment
was "a common occurrence on LinkedIn"
and although he invited his network to
visit Executive Perspectives's website,
"[t]here was no evidence as to the extent
to which any BTS clients or customers
received the posts." Moreover, the
court noted that "[a]bsent an explicit
provision in an employment contract
which governs, restricts or addresses an
ex-employee's use of such media, the
court would be hard-pressed to read the
types of restrictions urged here, under
the circumstances, into the agreement."
Other jurisdictions have treated social
media activity similarly to the court in
BTS, USA, Inc., drawing a bright line
between direct solicitation and passive
activity, such as general posts and
updates. For example, a Massachusetts
court found that becoming "friends"
with former clients on Facebook, absent
other evidence of solicitation, did not
constitute solicitation. Invidia, LLC v.
Difonzo, 30 Mass. L. Rep. 390 (2012).
In Pre-Paid Legal Services v. Cahill,
924 F. Sup.2d 1281 (E.D. Okla. 2013),
Facebook posts of a former employee
touting his new employer's product did
employees from his former employer.
However, a Minnesota court granted a
preliminary injunction ordering a former
employee to remove LinkedIn posts
touting the products of her new employer
for the duration of her non-solicitation
covenant. Mobile Mini, Inc. v. Vevea,
2017 U.S. Dist. LEXIS 116235, at *1
(D. Minn. July 25, 2017). Most recently,
the Illinois Appellate Court held that a
former employee's request to connect on
LinkedIn with three former employees
was not violation of a covenant not to
recruit employees. Bankers Life & Cas.
Co. v. Am. Senior Benefits LLC, 83 N.E.3d
1085 (Ill. App. 2017).
develop and will likely change as social
media evolves. The overriding lesson
that can be derived from these decisions
is that courts have drawn a distinction
between passive or generic activity on
social media, such as general posts
and updates, and direct solicitations
that would breach a non-solicitation
covenant whether conveyed over email,
telephone or in-person. General posts,
status updates and linking with others,
even clients, customers or employees of
a former employer, may be acceptable so
long as activity is not accompanied by
a direct solicitation. Further, absent an
agreement to do so, a former employee
customers or former co-workers from
online networks for fear of violating a
non-solicitation covenant.
If an employer wishes to govern
the social media activity of its former
employees, the employer should include
specific language to that effect in a non-
solicitation covenant. (For example, by
including a definition of "solicitation"
that includes communication on social
media). However, an employer must avoid
including overly restrictive terms which
may render the covenant unenforceable.
In addition, an employer should discuss
social media activity with departing
employees and consider providing a notice
to the departing employee, reminding
the employee of his or her continuing
obligations to the employer.
slow to contemplate the pervasive nature
of social media as it pertains to non-
solicitation covenants. Nevertheless,
employers must address the use of social
media in its non-solicitation covenants
if employers expect to enforce such
provisions through litigation. To this
end, the courts, despite the inherently
fact-specific nature of such claims, have
provided employers with useful guidance
to modernize employee non-solicitation
covenants.