Can Social Media Violate a Non-compete Clause?

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Social media is a great way to expand and maintain your network. The majority of social media networking, however, is informal and people tend to treat it that way. Interacting with your co-workers through social media can be a recipe for trouble. Along those lines, how does social media fit in with a non-compete clause?

What does the non-compete clause say?

As noted in this article, the first thing to consider is the language of the non-compete clause. Does it specifically prohibit any and all communications to former co-employees or former clients? If so, the use of social media to communicate with those individuals could be problematic. Taken to the extreme, would this require an individual to de-friend or remove previous contacts?

But what if the non-compete clause is more “standard” and prohibits an individual from contacting former co-workers to recruit them, or from recruiting/soliciting former clients? Things become murky at that point. Status updates talking about a new position are seemingly innocuous. Using Facebook, or LinkedIn, however, to solicit someone would appear to violate the clause.

What is the purpose of the communication?

Regardless of the medium (email, social media, telephone, etc.), if the purpose of the communication is contradictory to the non-compete clause, the medium probably does not matter.

But what about a status update that skirts the line. For example, what if a status update says “Loving my new job, everyone should work here.” If that update appears in a former employees news feed, is that considered a solicitation? Is that even considered an intentional or purposeful communication? What if the person simply forgot that the former employees receive their status updates?

Perhaps this case will shed some light on the issue. But given the prevalence of social networking, especially among co-workers, this is an issue that will not go away anytime soon.

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  • Omar Alam

    I spent some years doing compliance/risk/governance for clients and was asked something similar to this a few times. The primary thing is that social media is where people are connecting, talking, giving updates, and networking. So if a former employee (who still is on a list, friend network, or some type of fan page) is expressing their happiness at their new work location, well than it would be hard to show they are soliciting or poaching even. Try justifying violation of a NCA/NCC on Twitter.

    Unless they go bananas and deliberately start blasting out consistent updates/notices/posts regarding how others should jump ship and come here, then it would be something to look at. Even then just severing the social media/network connection would be an action to take.

  • Dan

    I would think that a NCC that covered Twitter and other social media would be found unconscionable in quite a few jurisdictions, simply because it goes beyond the intent of the clause — tweets and social media posts are broadcasts to a wide variety of followers/friends, and not targeted or private communications. Ignoring the public policy implications of supporting a broad contractual restriction on public speech, there’s simply no reason for the former employer to want it, as they get no benefit.

    Now, if this were a ban on DM-ing former clients, or facebook messaging (as opposed to status updates) I could see it being more justifiable. Otherwise, I could not see this being enforceable, especially as more jurisdictions are starting to hold non-competes presumptively invalid in all but the most narrowly written instances.