with Non-Solicitation Covenants
of business interactions. Job postings,
industry news and personal career
changes are commonly shared through
LinkedIn and other social media sites.
However, social media activity often
blurs the lines of certain obligations
contained in non-solicitation covenants
between employers and their former
employees. For example, may a former
employee post news about starting
a new job if the former employee is
"linked" with clients and customers of
the employer? Can a former employee
connect with clients, customers and
employees of a former employer? Or
must an employee delete any social
customers or clients upon termination?
Generally, an employer's non-solicitation
covenant is silent on such questions. The
resulting void has required the courts to
decide how social media activity should
be considered in the context of non-
solicitation covenants.
Non-Solicitation Covenants
economic consequences and basic
fairness, non-competition covenants in
the employment context are becoming
increasingly disfavored across the
country, both by courts and state
legislatures seeking to statutorily limit
the use of such covenants. A less
restrictive and often more enforceable
alternative is a non-solicitation
covenant. A non-solicitation covenant
between an employer and employee
typically protects the employer's clients,
customers, vendors and/or employees
from being poached by a former
employee for a specified period of time.
and Updates Constitute
Solicitations?
be Facebook, LinkedIn, Twitter, or some
other forum, has become embedded
in our social fabric." The Connecticut
Superior Court so observed in the case of
BTS, USA, Inc. v. Executive Perspectives,
2014 Conn. Super. LEXIS 2644 (Super.
Oct. 16, 2014) (aff'd, 166 Conn. App.
474 (2016)). In BTS, USA, Inc., the
court, among other things, was presented
with the issue of whether defendant,
Marshall Bergmann, breached a non-
employer, plaintiff, BTS, USA, Inc.
The non-solicitation covenant at issue,
which was contained in Bergmann's
employment agreement, stated in
relevant part, that:
following the end of Employee's
active duties with employer, either
directly or indirectly... [c]all on,
solicit or take away or attempt
to call on, solicit or take away
or communicate in any manner
whatsoever, with any of the
clients of Employer; [or] [c]all on,
solicit, or take away, or attempt
to call on, solicit, or take away
or communicate in any manner
whatsoever, with any of the clients
of Employer on behalf of any
business which directly competes
with employer."
employment with BTS, Bergmann
accepted a position with Executive
Perspectives, LLC, a direct competitor
of BTS. Thereafter, Bergmann took
to LinkedIn. Bergmann first posted
about his new job on LinkedIn and
subsequently invited his connections to
"check out" his new employer's website
which he had reworked. Notably, clients
and contacts that Bergmann developed
during his employment at BTS were
part of his LinkedIn network. He did
not "unlink" these individuals upon his
departure from BTS nor was he requested
to do so. Bergmann also counted current
BTS employees in his network.
BTS alleged that Bergmann's
LinkedIn activity constituted a breach
firm of Brody Wilkinson PC. He practices in the
areas of employment law, business law and
litigation. He frequently represents employers in
connection with employment matters, including
the drafting and enforcement of non-competition
and non-solicitation covenants.
2507 Post Road
Southport, Connecticut 06890
brodywilk.com