Employees often use personal accounts on social media websites like LinkedIn and Facebook to promote their work and share information about new jobs. While this might seem harmless, the growing use of these sites has raised legal questions about how these sorts of activities interact with an employee’s obligations under a non-compete or non-solicitation agreement. A recent decision from the Illinois Appellate Court adds to the growing case law surrounding this issue.
Bankers Life, which sells insurance and financial products, alleged a former branch manager, Gregory Gelineau, violated the terms of an employment agreement that barred him from soliciting former co-workers by sending requests to “connect” via LinkedIn to three Bankers Life employees. The company claimed that after clicking on Gelineau’s profile, the employees saw a job posting for American Senior Benefits, Gelineau’s new employer and a competitor of Bankers Life.
A lower court ruled in favor of Gelineau, holding the “connection” invitations did not constitute a solicitation that would violate the non-solicitation agreement. Bankers Life subsequently appealed.
In a ruling June 26, the Appellate Court of Illinois, First Judicial District affirmed the judgment in favor of Gelineau. In its decision, the appeals court took note of decisions from courts around the country that involved various forms of social media.
For example, in 2014 a Connecticut court rejected a claim against a webpage designer who updated his LinkedIn account once he accepted a new job and made a posting on the site encouraging his contacts to “check out” a website he designed for the new company (BTS USA Inc. v. Executive Perspectives LLC). On the other side, a judge in the Eastern District of Michigan held in 2010 that an employee’s use of his LinkedIn account did violate a non-solicitation agreement, rejecting the argument that postings on the site could not be considered improper solicitations because they were “passive” and “untargeted.”
The Illinois Appellate Court said the different results “can be reconciled when looking at the content and the substance of the communications.” Here, the invitations to connect via LinkedIn were sent through generic emails that invited the recipient to form a professional connection. The emails did not discuss Bankers Life or ASB, nor did they encourage the recipients to join ASB. Rather, the emails simply requested to form a professional networking connection. The court held such bare requests were not the type of direct, active efforts to recruit that would violate the non-solicitation clause.
“Upon receiving the emails, 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 non-competition agreement.”
The decision falls in line with other courts that have addressed questions about whether an employee’s use of LinkedIn and other social media violates employee non-solicitation agreements, focusing on the content of the employee’s social media activity. Courts have generally distinguished between passive activity (such as posting an update about a new job) and more targeted actions (like actively recruiting former co-workers or clients), with the former being found to be activity that does not constitute a violation of a non-solicitation agreement.