Can a LinkedIn Social Media Invitation to Former Colleagues Violate a Non-Solicitation Agreement?

Considerations made during the termination of an employee-employer relationship often include protecting the company against potential threats to its continued operations. These concerns may include prohibiting the former employee from contacting clients for a defined amount of time. Concerns can also include protecting employees and talent from recruitment by the former employee. Most non-solicitation and non-compete agreements will consider protecting these and other potentially vulnerable aspects of a company.

When a non-solicitation agreement includes provisions that prohibit contact between your former employee and current employees, there a can be a question regarding what types of interactions will violate a non-solicitation agreement. If the former employee sends a generic LinkedIn invitation will this act violate the non-solicitation agreement? What if the former employer further personalizes the communication sent to former co-workers?

The business lawyers and commercial litigators of the Heyman Law Firm can provide on-point guidance regarding non-compete and non-solicitation agreements. To discuss how our attorneys may be able to provide guidance, please call 2(410) 305-9287.

Will a LinkedIn Invite Violate a Non-Solicitation Agreement?

Before we delve into this issue, first a few caveats. To start, it is essential to note that the operative language of the agreement and the law in the state where the agreement was executed are two key factors in determining whether a line has been crossed. Therefore, it is only possible to assess whether statements or invitations run afoul of an agreement after a careful review of its specific language.

One state court in Illinois was recently faced with the question of whether a LinkedIn invitation violated a non-solicitation agreement.  In the Illinois matter, Bankers Life & Casualty Co. v. American Senior Benefits, LLC, a sales manager who had previously signed a non-solicitation agreement left the company. After leaving the company, the sales manager sent LinkedIn invites to three former colleagues still with the company. The company claimed that these LinkedIn invitations violated the non-solicitation agreement.

However, the court assessed the invites and found that:

[T]he undisputed facts established that the invitations to connect via LinkedIn were sent from Gelineau’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 Gelineau’s profile page, and no solicitation to leave their place of employment and join ASB. Instead, the emails contained the request to form a professional networking connection. Upon receiving the emails, the Bankers Life employees had the option of responding to the LinkedIn requests to connect.

The court found that a generic invitation to form a professional network did not run afoul of the non-solicitation provision. However, the court cautioned that the specific language and facts found in each unique situation could potentially change the result. If the sender had personalized the message by including personal knowledge or other “inside information” then it is at least possible that the LinkedIn invitation could be considered an impermissible solicitation.

Maryland Federal Courts Have Also Addressed Similar Concepts

While it does not seem that Maryland courts have addressed this issue directly, a question of whether LinkedIn invitations to former clients could be considered solicitations in violation of a non-compete was raised in Paul v. ImpactOffice, LLC (D. Md., 2017). Here, ImpactOffice’s claims included that Paul breached the Agreement by “knowingly connecting with and soliciting Impact’s customers through LinkedIn in the days following his resignation.’”

The non-solicitation language in question prohibited:

Solicit[ing] or accept[ing], directly or indirectly, the business of any customer or prospective customer of the Company, or its Affiliates, for the purpose of selling or distributing office products or services sold by the Company, or its Affiliates, within 6 months of the date of the cessation of the Employee’s employment with the Company.

Unfortunately, the court did not reach the merits of whether a LinkedIn invitation could theoretically violate a non-solicitation agreement because the agreement’s language was nearly identical to the non-solicitation provision that the court found to be unenforceable in Siniavsky and Chapman. Although the court did not reach the merits of whether this particular message violated the agreement, it did set forth important guidance Maryland businesses can utilize generally to avoid problems with non-solicitation agreements. Maryland business should take note that non-solicitation agreements that do either of the following are likely to be found void in Maryland:

• An agreement that prohibits the “acceptance of” or “accepting” business from any customer of the company. A restriction that prohibits accepting business is unreasonable. An employer’s protectable interest exists to the extent it is required in “preventing an employee from using the contacts establishing during employment to pirate the employer’s customers.” Holloway, 572 A.2d at 515.
• An agreement that bars a former employee from soliciting “prospective customers” is also likely unreasonably overbroad. This is because the term “prospective customer” can include individuals with whom the former employee has never had a relationship or even contact.

Here, due to the overbroad and unenforceable nature of the non-solicitation language the court utilized blue penciling to excise language that renders the non-solicitation provision facially overbroad and struck “or accept” and “or prospective customer” from the clause. Despite the blue penciling, the court nevertheless found the non-solicitation agreement itself unenforceable.

Work with Experienced Commercial Litigators in Maryland

If your business is concerned about potential damage to its bottom line due to former employees poaching customers, clients, or talent the lawyers of the Heyman Law Firm can provide careful, strategic guidance. Our employment lawyers can review existing agreements to prevent potential issues regarding potentially unreasonable and unenforceable agreements. If your business is already facing litigation over a non-compete or non-solicitation agreement, our lawyer may be able to provide strategic on-point representation throughout the legal process. To discuss how our legal team can help, please call (410) 305-9287.