Do Your Restrictive Covenants Cover Social Media?

It’s not unusual for employers to require certain employees to sign agreements containing restrictive covenants. These covenants might restrict competition for a period of time. These covenants might take the form of non-solicitation and non-disclosure restrictions, which say the employee can’t solicit the employer’s clients or customers or disclose proprietary information. If an employee has had significant contact with clients or customers, a non-solicitation agreement is quite important.

In what may be the first lawsuit of its kind, a Minnesota employer has sued a former employee for violating of a non-solicitation agreement. What makes this case unique is that the employee is accused of soliciting the former employer’s clients through social networking sites like LinkedIn. The former employer says this is as much a violation of the agreement as any other solicitation.

For the most part, the outcome of this case will depend on the terms of the non-solicitation agreement, on the actions of the former employee, and on state law. While non-solicitation agreements aren’t new, most of the agreements may not include a reference to social media or social networking sites. It’s likely, however, that if an agreenent has a catch-all phrase that prevents the solicitation of clients (like “or by any other means”), that will be good enough to prevent former employees from soliciting through sites like LinkedIn.

For the future, employers should include social networking as part of the prohibited solicitation, so there’s no doubt about it. That is, the definition of “solicit” should encompass social media. Another thing for employers to note about this case is that the new employer is also being sued for causing the former employee to violate the non-solicitation agreement. If you’re hiring an employee for a key position, you must know what agreements the employee is subject to before he comes to work for you.