Early last month, I blogged here about a situation involving an individual who:
- signed a non-solicitation agreement with Company A;
- left Company A to work for Company B; and
- invited some former Company A employees to connect with him on LinkedIn.
Under these facts, an Illinois held (here) that the invitation to connect on LinkedIn alone was not enough to violate the agreement not to solicit.
Now let’s change the facts up a bit. We’ll keep 1 and 2. But, instead of sending LinkedIn invitations, we’ll have the former employee make a few general posts to her existing LinkedIn network:
Here’s post #1:
I’m excited to have joined the Citi-Cargo Sales Team! We lease and sell clean, safe, and solid storage containers and offices. We are locally owned and operated, with local live voice answer. We offer same day delivery to the Metro, and have consistent rental rates with true monthly billing. Give me a call today for a quote. XXX-XXX-XXXX.
And here’s post #2:
Call me today for a storage container quote from the cleanest, newest, safest and best container fleet in the State of Minnesota. Let’s connect! XXX-XXX-XXXX.
Would these violate a covenant not to solicit?
According to a Minnesota federal court in Mobile Mini, Inc. v. Citi-Cargo & Storage Co., Inc. (opinion here), not only was it likely that the former employee did breach her non-solicitation agreement, but the risk of irreparable harm supported a preliminary injunction against allowing her to work for a competitor:
Instead of merely announcing a job change, the language of the posts here demonstrates that Vevea’s purpose was to entice members of Vevea’s network to call her for the purpose of making sales in her new position at Citi-Cargo….The information before the Court also indicates that in all likelihood, Vevea’s LinkedIn network includes at least one, if not many, Company Customers. Thus, the posts likely amount to direct solicitation of business from Company Customers in violation of ¶ 5(a) of the Agreement.
Vevea’s past breaches and threatened future breaches of the Agreement’s nonsolicitation provision pose a danger of irreparable harm to Mobile Mini in the form of lost future customers and loss of goodwill and reputation. While Vevea states that she has been referring and will continue to refer calls from Company Customers to Mobile Mini, there is at least some chance that the fact that the LinkedIn posts have been up since May 2017 has harmed Mobile Mini’s reputation and will lead to lost customers in the future, so Defendants’ efforts to comply with the Agreement may be insufficient to prevent harm.
A couple of takeaways:
- For OldCo. – Provide your separating employee with a copy of her restrictive covenants, instruct her to provide it to any potential NewCo., and underscore that solicitations include announcements on LinkedIn.
- For NewCo. – Before hiring anyone for a position in which it is reasonably likely that the new employee may have a restrictive covenant, communicate to that potential new hire that any offer of employment is conditioned upon not having any valid restrictive covenant. Further, make the new hire sign a document affirming that she does not have any valid restrictive covenants and that NewCo. does not want her to violate any prior agreement with any prior employer.
- For the employee. – When you post something on LinkedIn for everyone in your network to see, remember that may include some former colleagues. Remember that.