The Role of Social Media in Non-compete Contracts and the Workforce

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The Role of Social Media in Non-compete Contracts and the Workforce

Social media has made it easier than ever to connect with people all over the world.  It’s allowed for open and free communication between more people at once than ever before.  The essence of this fact makes non-compete contracts and clauses more complicated than they were before the digital age.

Find an Experienced Non-compete Attorney

Much like social media, the availability of information on just about any topic has grown exponentially over the past decade.  There is no replacement for an experienced non-compete attorney in your state if you have concerns about employees, current or former, using social media in improper and harmful ways.  The reality is that social media will be a part of our life for the foreseeable future, and it will have to be considered to operate your business with effective non-compete contracts and non-solicitation agreements.

Can Non-competes and Non-solicitation Contracts Include Social Media?

The short answer is that it depends and it is evolving with recent rulings around the country.  There is no doubt that you can include restrictions on how former employees use social media to contact current employees and customers.  However, you cannot restrict them from any contact with those same individuals on social networks.

Passive Social Media Activity is Generally Protected

A recent ruling in Appeal from the Circuit Court of Cook County, Bankers Life & Casualty Co. v. American Senior Benefits LLC, provided precedent for the protection of passive social media activity.  In this particular case, a former employee sent connection requests on LinkedIn to current employees and customers of Bankers Life.  Since these request contained no clear solicitation or anything other than the generic connection request, the request for additional discovery was denied.

Active Solicitation on Social Media Could be Evidence of Breach

Non-compete contracts can restrict active solicitation on social media.  Total Care Physicians v. O’Hara (Del. Super. Ct. 2002) provides precedent that active messages of solicitation on social media are no different than any other targeted message or marketing/advertising material.  If you have not put clear language to prevent active solicitation of your current employees and customer into your company’s non-compete contracts and non-solicitation agreements, it’s more important than ever to work with an experienced non-compete attorney in your state to get that updated.