Companies eye social media to enforce non-solicitation agreements
But such status updates about how a person is “excited to start the next chapter” at a new company, now shared as commonly as vacation pictures, could have consequences beyond just drawing the ire of jealous friends: They could lead to legal trouble.
Tweeting about work can get you sued
In the age of social media, discussing company business as if it were just the same old status update can get workers in trouble. Jonnelle Marte explains on digits. Photo: Getty Images.
For employees restricted by nonsolicitation agreements, for instance, which prohibit them from recruiting former co-workers after going to work for a competitor, the posts can be interpreted as an attempt to work around those restrictions and slyly solicit applications. And with little clarity as to what level of communication is required to violate these agreements, companies are testing the waters, questioning the motives behind status updates, title changes and even friend requests. “There’s not a bright line on how far is too far,” says Keith Sonderling, an employment attorney at Gunster, a commercial law firm based in Palm Beach County, Fla.s
When such posts or online updates coincide with the hiring of a former colleague that the worker is prohibited from recruiting, it may be enough to cause ex-employers to step in. Some employees will receive letters from their previous employers attempting to halt the new hire, attorneys say. In rare cases, the employer may sue for damages, seeking to be compensated for what it will cost them to replace the worker or for any sales they claim were lost if clients also followed those workers to the competitor, says Dan McCoy, a litigation partner for Fenwick & West in Mountain View, Calif. Many of these cases never make it to court, because they end in settlements, employment attorneys say. But one thing is clear: Employers are watching your every social-media move.
One of the first notable nonsolicitation cases involving social media was TEKsystems vs. Hammernick, filed in 2010 after a former TEKsystems worker connected with old colleagues on LinkedIn after leaving the company. Employment attorneys watched the case closely, hoping for the courts to offer guidance on how subtle moves online could be viewed as solicitation. But the two parties settled, leaving workers and attorneys with more questions than answers.
Some cases are more clear-cut than others. Privately messaging an old colleague on Facebook to tell them about a job posting or to ask if they’re looking for new opportunities could be equivalent to sending them an email or calling them up, giving companies evidence of a clear violation, attorneys say. But there is a big gray area. A person posting about how much happier they are at their new company may be intending to just share good news with their friends, but some employers could view that post as an attempt to recruit workers they aren’t supposed to, job experts say. “This is a little bit of unchartered territory,” says Sheeroy Desai, co-founder and chief executive of Gild, a company that mines data to help employers find top candidates.
Sonderling says he has worked with some employers questioning if a person who posts job opening on a network where they can be seen by former colleagues is enough to break that contract. But proving the intention behind a post is difficult, says Susan Trench, a Miami-based litigation partner with Arnstein & Lehr, an employment and business law firm. “You might be able to say ‘I didn’t solicit him–he heard about my company through someone else,’” says Trench. That’s why some companies are moving from nonsolicitation agreements to contracts saying a worker cannot hire a colleague for a set period of time after moving to a competitor, she says.
The audience on the receiving end of the posts matters. It would be tough to prove that a general update to a broad network on Facebook on LinkedIn was meant to be used to recruit old colleagues, attorneys say. But if the message is going out to a network that primarily consists of former colleagues, employers may have more of a case that the contract is being breached, says Sonderling, even if that person is not messaging previous co-workers individually.
Some companies are responding by expanding their nonsolicitation agreements to specify that workers cannot be directly or indirectly recruited on social media sites like LinkedIn, Facebook and Twitter, says Sonderling, even reminding people of the policies at their exit interviews. “Whatever you’re posting online, whoever you’re adding online, just know you’re making a visual record online of all your potential solicitations,” he says. See also: 10 things your co-workers won’t tell you