Tuesday, August 15, 2017

Does a LinkedIn request violate a non-solicitation agreement?

In Bankers Life and Casualty Company v. American Senior Benefits (Ill. Ct. App. 8/7/17), Bankers Life sued a former sales manager, Gregory Gelineau, for violating the following non-solicitation agreement after he jumped ship to American Senior Benefits, a competitor:
During the term of this Contract and for 24 months thereafter, within the territory regularly serviced by the Manager’s branch sales office, the Manager shall not, personally or through the efforts of others, induce or attempt to induce: 
(a) any agent, branch sales manager, field vice president, employee, consultant, or other similar representative of the Company to curtail, resign, or sever a relationship with the company; [or]
(b) any agent, branch sales manager, field vice president or employee of the Company to contract with or sell insurance business with any company not affiliated with the company. 

According to Bankers Life, Gelineau allegedly asked three of its employees to connect via LinkedIn. By connecting, Bankers Life argued, the employees could then view Gelineau’s profile, which would uncover job listings at American Senior. Galineau argued that he never used LinkedIn to send direct messages to Bankers Life employees, and instead merely sent “LinkedIn generic emails” asking them to form a professional connection on social media.

The court held that the mere act of asking someone to connect on the social network, via a generic, canned email generated by the network itself, did not violate the non-solicitation agreement:
Here, … the undisputed facts established that the invitations to connect via LinkedIn were sent from Gelineau’s LinkedIn account through generic e-mails that invited recipients to form a professional connection. … The generic emails did not contain any discussion of Bankers Life, no mention of ASB, no suggestion that the recipient view a job description on Gelineau’s profile page, and no solicitation to leave their place of employment and join ASB. Instead, the emails contained the request to form a professional networking connection. Upon receiving the emails, the Bankers Life employees had the option of responding to the LinkedIn requests to connect. If they did connect with Gelineau, the next steps, whether to click on Gelineau’s profile or to access a job posting on Gelineau’s LinkedIn page, were all actions for which Gelineau could not be held responsible. Furthermore, Gelineau’s post of a job opening with ASB on his public LinkedIn portal did not constitute an inducement or solicitation in violation of his noncompetition agreement.
In other words, like other courts to consider this same issue, a breach of a non-solicitation agreement requires active efforts on the part of the former employee to induce a former co-worker or customer to do something. The mere act of connecting on a social network is not enough; it’s akin to keeping the person’s email and phone number in your rolodex.

If, however, you are concerned about ex-employees using LinkedIn or other social networks to connect with employees or customers, why not include language in your no-solicitation agreement to cover such a possibility?
“Solicitation” includes, but is not limited to, offering to make, accepting an offer to make, or continuing an already existing online relationship via a Social Media Site. “Social Media Site” means all means of communicating or posting information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, in addition to any other form of electronic communication.
By defining “solicitation” to include passive social media connections and activities, you are at least putting yourself into a position to have a court consider shutting down an ex-employee for creating or maintaining these online relationships.