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September 08, 2018

Social Media and Non-Solicits: Does Making a LinkedIn Connection Count as a Solicitation?

Social Media and Non-Solicits: Does Making a LinkedIn Connection Count as a Solicitation?

LinkedIn has become an essential tool for many professionals. The site provides a platform for making business connections, sending direct messages, gathering marketplace information, and posting updates and content. But the very features that make the site useful for business and career development can also stir up trouble where non-competes and non-solicits are involved.

A number of courts have grappled with the impact of social media sites like LinkedIn on non-compete and non-solicit agreements. Most recently, in Bankers LIfe and Casualty Company v. American Senior Benefits, LLC et al, an Illinois appellate court considered whether a former branch sales manager for a life insurance company violated his agreement not to solicit company employees when he used LinkedIn to make connections with former colleagues after he left to work for a competitor.

Merely inviting a former co-worker to connect on LinkedIn seems a far cry from an improper solicitation —although I have seen lawsuits and cease-and-desist letters based on grounds even flimsier than this. “Non-solicit” does not mean “cut off all contact whatsoever.” In this case, however, there was a small twist: The former sales manager had also published a job posting for his new employer on his LinkedIn page that could be viewed by those with whom he was connecting.

Neither action—connecting with former colleagues and publishing a job posting—would seem to constitute a solicitation all by itself. But what about the two actions taken together? The former employer argued that the contacts and the job posting did run afoul of his non-solicitation agreement, particularly when considered alongside the defendant’s supposed modus operandi of making LinkedIn connections as a first step in recruiting its employees. The idea, apparently, was that the former branch sales manager was wrongly using connection requests to lure his former colleagues to the job posting.

The court disagreed. Ruling in favor of the former sales manager, the court reasoned:
The generic e-mails did not contain any discussion of Bankers Life, no mention of ASB, no suggestion that the recipient view a job description on Gelineau’s profile page, and no solicitation to leave their place of employment and join ASB. Instead, the e-mails contained the request to form a professional networking connection.

The Court Explained Further:

Upon receiving the e-mails, the Bankers Life employees had the option of responding to the LinkedIn requests to connect. If they did connect with Gelineau, the next steps, whether to click on Gelineau’s profile or to access a job posting on Gelineau’s LinkedIn page, were all actions for which Gelineau could not be held responsible. Furthermore, Gelineau’s post of a job opening with ASB on his public LinkedIn portal did not constitute an inducement or solicitation in violation of his noncompetition agreement. 
In short, the former employee’s connection requests were generic in nature, and did not so much as mention his new company or the job opportunity there. Any further steps taken by former colleagues at his old company—such as accessing his profile and viewing the job posting—were their responsibility alone.

Accordingly, there was no solicitation, and no violation of the agreement.
It might be tempting to look for a categorical rule permitting or forbidding the use of LinkedIn across the board by those subject to a non-compete or non-solicit agreement. But LinkedIn invitations, messages, and postings are like any other form of communication. They can be innocuous, or they can violate one’s obligations to a former employer, depending on the content and context. As with most aspects of non-compete law, the permissible use of social media requires a fact-specific analysis. The Bankers Life opinion provides some useful guidance in this developing area of law.