Could a link to a social media friend lead to legal trouble?

Social media profiles have become an ingrained part of most of our lives. At one time they were a novelty that seemed to mostly serve the purposes of remembering Aunt Betty's birthday or sharing the latest video of cat hijinks; now they provide a valuable professional function. Many people now use social media sites to connect for business purposes, whether promoting their skills and services or searching for a new position. In fact, one such social media service the wildly popular LinkedIn serves as the world's primary digital tool for carrying out professional self-promotion.

As of April 2017, LinkedIn had 500 million users with active profiles, and 128 million of those users were based in the United States. Each month, more than 100 million of those users actively engage with LinkedIn to update their profile or share content with the aim of promoting their careers in some manner.

For years, LinkedIn has been touted as the "safe" social media site where companies and individuals could feel comfortable connecting with each other without fear of crossing the line of inappropriate contact. After all, some of the more common social media sites such as Facebook, Twitter and Instagram are a treasure trove of personal information that is better left ignored by businesses looking to make a hiring decision. No hiring manager wants to know details about a candidate's dating life, religious persuasion, age, disability status, family or many other categories that are often readily visible on typical social media platforms.

On the other hand, LinkedIn is structured in a way to limit the kinds of information shared to those that center around an individual's skills, experiences and education the kinds of things an employer should want to know about. For that reason, most people looking for candidates or new employment positions feel comfortable using LinkedIn without fear of encountering any legal concerns.

Gregory Gelineau probably felt this way in 2015 when he quit his job at Bankers Life and Casualty Co., an Illinois-based insurance company, to work for a competitor, American Senior Benefits (ASB). Like most industrious professionals in a new position, he wanted to maximize his impact as senior vice president at ASB, so he sent LinkedIn invitations to a group of his former co-workers. In response, Bankers Life sued him and his new company.

That's because Gelineau in 2006 signed an employment agreement with Bankers Life that contained a non-solicitation provision. According to the contract, for a 24-month period after departing employment with Bankers Life, Gelineau agreed not to induce any employee to curtail, resign or sever their relationship with the company, or to go into business with any competing company to sell insurance.

Bankers Life alleged that Gelineau violated that provision by connecting with his former co-workers on LinkedIn, arguing that doing so was an attempt to recruit them to leave Bankers Life and sell insurance at ASB. The company argued that employees who received Gelineau's invitation to connect on the professional networking site were able to follow a link to Gelineau's LinkedIn page, where they would then see job postings for available positions at ASB, and thereby feel induced to leave their current positions.

Gelineau responded by pointing out that he never used LinkedIn to send any direct messages to Bankers Life employees; instead, all individuals within his email contact list were simply sent generic "invitation" emails from LinkedIn, inviting them to connect with him on the networking site. This was good enough for the trial court, which dismissed the lawsuit in 2016.

Bankers Life persisted, however, and filed an appeal with the Illinois Court of Appeals. The case wrapped up earlier this year with a ruling in Gelineau's favor, as the appeals court rejected Bankers Life's position. It agreed that the LinkedIn invites did not constitute "solicitations" in violation of the employment agreement just because they directed recipients to a job posting, and disregarded evidence raised by Bankers Life suggesting that Gelineau's modus operandi was to utilize LinkedIn as the first step toward making inappropriate contact with those who could be potential job applicants.

The court looked to decisions from across the country in arriving at its decision. Most specifically, it cited a 2014 Connecticut case with a web designer who updated his LinkedIn profile to list his new position and posted a link to the site encouraging his contacts to "check out" a website he had designed for his new employer. In that case, the court rejected his former employer's suit for breach of a non-solicitation agreement and noted that there was no evidence that any clients or customers actually viewed the former employee's LinkedIn activity or did business with the competitor as a result of the LinkedIn activity.

In Gelineau's case, the court similarly found that the generic emails sent from his LinkedIn account constituted mere "passive social media activity" that did not rise to the level of solicitation. Instead, the court focused on the content and substance of the communications, noting there was no targeted activity such as sending direct messages to former co-workers or other focused and deliberate activity directed to customers or employees.

Employers considering whether to use non-solicitation agreements or wondering about the enforceability of existing agreements as they relate to social media activity should think about the facts of this case before proceeding. This case, and others like it, reflect the reality that co-workers often develop relationships with each other that continue after the employment relationship ends; they commonly use social media to stay in touch. Just doing so will generally not rise to the level of inappropriate conduct that it triggers the violation of a valid restrictive covenant.

As this case pointed out, courts will generally focus on whether any targeted activity took place instead of generic contact. That being said, consult legal counsel about specifically addressing social media communications in these agreements, because it is quite possible for unscrupulous former employees to violate restrictive covenants using an online platform.

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Rich Meneghello is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers' interests in all aspects of workplace law. Contact him at 503-205-8044 or rmeneghello@fisherphillips.com, or follow him on Twitter @pdxLaborLawyer.

Published: Wed, Oct 11, 2017

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