Virginia Lawyers Weekly
October 20, 2017
Social media profiles have become an
ingrained part of most of our lives. At one time they were a novelty that
seemed to mostly serve the purposes of remembering Aunt Betty’s birthday or
sharing the latest video of cat hijinks; now they provide a valuable
professional function. Many people now use social media sites to connect for
business purposes, whether promoting their skills and services or searching for
a new position. In fact, one such social media service the wildly popular
LinkedIn serves as the world’s primary digital tool for carrying out
professional self-promotion.
As of April 2017, LinkedIn had 500
million users with active profiles, and 12 million of those users were based in
the United States. Each month, more than 0 million of those users actively
engage with LinkedIn to update their profile or share content with the aim of
promoting their careers in some manner.
For years, LinkedIn has been touted
as the safe social media site where companies and individuals could feel
comfortable connecting with each other without fear of crossing the line of
inappropriate contact. After all, some of the more common social media sites
such as Facebook, Twitter and Instagram are a treasure trove of personal
information that is better left ignored by businesses looking to make a hiring
decision. No hiring manager wants to know details about a candidates dating
life, religious persuasion, age, disability status, family or many other
categories that are often readily visible on typical social media platforms.
On the other hand, LinkedIn is
structured in a way to limit the kinds of information shared to those that
center around an individual’s skills, experiences and education the kinds of
things an employer should want to know about. For that reason, most people
looking for candidates or new employment positions feel comfortable using
LinkedIn without fear of encountering any legal concerns.
Gregory Gelineau probably felt this
way in 2015 when he quit his job at Bankers Life and Casualty Co., an
Illinois-based insurance company, to work for a competitor, American Senior
Benefits (ASB). Like most industrious professionals in a new position, he
wanted to maximize his impact as senior vice president at ASB, so he sent
LinkedIn invitations to a group of his former co-workers. In response, Bankers
Life sued him and his new company.
That’s because Gelineau in 2006
signed an employment agreement with Bankers Life that contained a non-solicitation
provision. According to the contract, for a 24-month period after departing
employment with Bankers Life, Gelineau agreed not to induce any employee to
curtail, resign or sever their relationship with the company, or to go into
business with any competing company to sell insurance.
Bankers Life alleged that Gelineau
violated that provision by connecting with his former co-workers on LinkedIn,
arguing that doing so was an attempt to recruit them to leave Bankers Life and
sell insurance at ASB.
The company argued that employees who received Gelineaus
invitation to connect on the professional networking site were able to follow a
link to Gelineaus LinkedIn page, where they would then see job postings for
available positions at ASB, and thereby feel induced to leave their current
positions.
Gelineau responded by pointing out
that he never used LinkedIn to send any direct messages to Bankers Life
employees; instead, all individuals within his email contact list were simply
sent generic invitation emails from LinkedIn, inviting them to connect with him
on the networking site. This was good enough for the trial court, which
dismissed the lawsuit in 2016.
Bankers Life persisted, however, and
filed an appeal with the Illinois Court of Appeals. The case wrapped up earlier
this year with a ruling in Gelineaus favor, as the appeals court rejected
Bankers Lifes position. It agreed that the LinkedIn invites did not constitute
solicitations in violation of the employment agreement just because they
directed recipients to a job posting, and disregarded evidence raised by
Bankers Life suggesting that Gelineaus modus operandi was to utilize LinkedIn
as the first step toward making inappropriate contact with those who could be
potential job applicants.
The court looked to decisions from
across the country in arriving at its decision. Most specifically, it cited a
2014 Connecticut case with a web designer who updated his LinkedIn profile to
list his new position and posted a link to the site encouraging his contacts to
check out a website he had designed for his new employer. In that case, the
court rejected his former employer’s suit for breach of a non-solicitation
agreement and noted that there was no evidence that any clients or customers
actually viewed the former employees LinkedIn activity or did business with the
competitor as a result of the LinkedIn activity.
In Gelineaus case, the court
similarly found that the generic emails sent from his LinkedIn account
constituted mere passive social media activity that did not rise to the level
of solicitation. Instead, the court focused on the content and substance of the
communications, noting there was no targeted activity such as sending direct
messages to former co-workers or other focused and deliberate activity directed
to customers or employees.
Employers considering whether to use
non-solicitation agreements or wondering about the enforceability of existing
agreements as they relate to social media activity should think about the facts
of this case before proceeding.
This case, and others like it,
reflect the reality that co-workers often develop relationships with each other
that continue after the employment relationship ends; they commonly use social
media to stay in touch. Just doing so will generally not rise to the level of
inappropriate conduct that it triggers the violation of a valid restrictive
covenant.
As this case pointed out, courts will
generally focus on whether any targeted activity took place instead of generic
contact. That being said, consult legal counsel about specifically addressing
social media communications in these agreements, because it is quite possible
for unscrupulous former employees to violate restrictive covenants using an
online platform.
Rich Meneghello practices law in
Portland, Oregon.
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