Labor & Employment Developments Blog

Have you heard about the non-solicit suit involving communications on LinkedIn? Well, it seems that an employer in Minnesota is suing former employees and their new employer over violations of the employees’ non-solicitation agreements. The twist is that one of the employees allegedly did her solicitation through her LinkedIn page, communicating with several former colleagues after going to work for a competitor.

Follow the link for the bizjournals.com article.

Some commentators are raising red flags — do your non-compete agreements address social media communications; are your trade secrets at risk in the brave new world of social media? Could this be the start of a . . . . wait for it . . . .litigation explosion?!

Unlikely. In fact, I believe that this points to some good news for employers. Social media is a new means of communication but it is still communication like e-mail, telephones, and faxes.

Like the older forms of communication, there are appropriate and inappropriate social media communications. No one would suggest that a non-solicit agreement means that an employee cannot call a former co-worker on the telephone and chat about politics, sports, fashion, or just about anything except soliciting the co-worker to leave his or her employer.

The same is true of social media. It is only the inappropriate communications that are cause for concern, but there is good news for employers when it comes to these communications. Unlike older forms of communication, social media communication is largely visible and leaves an indelible record. If your ex-employee is foolish enough to solicit former co-workers or customers via social media, you have the proverbial smoking gun to enforce your restrictive covenants. Such evidence is far superior to disputed testimony over what was discussed in a phone call or lunch meeting, which is standard issue in most litigation over non-solicitation agreements.

As with many other employment related claims, the biggest impact of social media may be in the way in which evidence is gathered and claims are established, rather than in the development of a novel type of claim.

Let me know what you think. You'll find a link to my email at the CONTACT line below.