By Kevin A. Fritz

Seyfarth Synopsis: A former employee’s social media activities were not “solicitations” that breached his employment non-solicitation agreement where no suggestion to join the former employee was apparent from the activity.

Employers often wonder how far a non-solicitation agreement can go. It can frustrate employers, who may pay extra money for an employee to sign a non-solicitation agreement, to later learn that their former employees have violated such agreements.  And with the rise of social media, and its convergence into the business realm, potential violations through communications between current, prospective, and even previous employees have become more complicated than ever.  A recent Illinois appellate court recently considered the complex nature of these communications in the form of a LinkedIn invite.

What’s in a message?

In Bankers Life & Casualty Co. v. American Senior Benefits, LLC, No. 1–16–0687, 2017 IL App (1st) 160687-U (1st Dist., June 26, 2017), Bankers Life hired a branch sales manager who signed a non-solicitation agreement.  Part of the agreement required the manager not to solicit Bankers Life employees after he left the company.  Suffice it to say, the manager left the company, and according to Bankers Life, the past employee “recruited or attempted to recruit Bankers Life employees and agents from the Warwick, Rhode Island office, by sending LinkedIn requests to connect to three employees.” Once connected on LinkedIn, the three employees clicked on the former sales manager’s LinkedIn profile and saw that American Senior Benefits had open positions as the advertisement was posted on the former employee’s profile.

The question before the Appellate Court was whether an LinkedIn invitation to connect can be considered an attempt to solicit employees in violation of a non-solicitation agreement. The former sales manager moved for summary judgment, claiming that merely inviting one to connect on LinkedIn is not a prohibited solicitation, in contravention to the non-solicitation agreement. The sales manager put forward evidence to show that he did not send any direct messages to the three Bankers Life employees, but simply sent the standard LinkedIn request message that the three employees form a professional connection with him through the business social media platform.

The Appellate Court agreed and upheld the grant of summary judgment in favor of the former employee. The court found dispositive the fact that the “invitations to connect via LinkedIn were sent from [the employee]’s LinkedIn account through generic emails that invited recipients to form a professional connection. The generic emails did not contain any discussion of Bankers Life, no mention of [his new employer], no suggestion that the recipient view a job description on [the employee]’s profile page, and no solicitation to leave their place of employment and join [his new employer].”

Indeed, it did not even matter to the court that the employee’s page on LinkedIn had a job posting for his new employer. Rather, , what mattered to the court was that upon receiving the e-mails, the Bankers Life employees had the option of responding to the LinkedIn requests to connect. The court noted that where the substance of a LinkedIn communication revealed an invitation to apply for a position, such communication could rise to the level of a solicitation.

Employer Takeaway

While the decision is not binding authority on other Illinois courts, its rationale is poignant and will likely be used in future decisions. With any form of communication – whether it be LinkedIn, Facebook, Twitter, e-mail, or the next wave of social media enterprise – it is often less important how that information is communicated, but rather it is what is communicated that matters. If the substance of the message gives rise to a solicitation, it won’t matter if it is less than 140 characters, a temporary 10 second Snapchat, or even a LinkedIn request message.

For more information on this topic, please contact the author, your Seyfarth Attorney, or any member of the Firm’s Labor & Employment Team.