Is posting your new employer’s name on LinkedIn improper solicitation?
Most employees have a LinkedIn account. And many employees add colleagues and clients as connections.
Does a departing employee improperly solicit these employees and customers if he tells these connections that he has changed jobs via LinkedIn?
A recent case from the Superior Court of Connecticut in the United States (2014 Conn. Super. LEXIS 2644) considered this question.
Mr. Bergmann left his employment as a senior director at BTS to work for a competitor, Executive Perspectives (EP). Both companies design and market business simulations which educate and train employees.
In an employment contract, Bergmann agreed not to attempt to call or solicit or communicate in any manner whatsoever with any of BTS’ clients for two years after his employment ended. There was no evidence that BTS had any policies regarding an employee’s use of social media.
Shortly after joining EP, Bergmann posted his new job on his LinkedIn account. He later invited his connections to check out EP’s website that he helped design. BTS claimed, among other things, that he breached the terms of his employment contract.
Posting his new job on LinkedIn did not violate the non-solicitation clause in Bergmann’s employment contract.
Reasons for decision
The court observed that the use of social media including LinkedIn, Facebook and Twitter has become embedded in our social fabric.
Absent an explicit provision in an employment contract, a court will not imply a term of employment which precludes an employee from posting information about a new job on social media.
Lessons to be learned
1. This is an American case and therefore not binding on Canadian judges. However, Canadian judges may find it persuasive.
2. Employers should assume that employees use social media and will add work colleagues and clients as “friends”, “connections” etc. In addition, employers should assume that a departing employee will post details of his or her new job on social media.
3. If an employer is concerned that a departing employee’s social media activity will lure employees and/or customers to a competitor then the employer should include a term in the person’s employment contract which precludes the individual from doing so.