In order to protect its clients from being poached by departing employees, companies frequently require those employees to sign non-solicitation agreements, which prohibit employees, after they leave the company, from soliciting away the company’s clients. Traditionally, the employee would have had to make an affirmative effort to solicit a company’s clients by contacting them directly. But in the age of social media, a new wave of cases have popped up alleging violation of non-solicitation agreements by simple public announcements of the employee’s new venture, employer, and/or position, including through a harmless update of one’s employment status on social media sites such as Facebook or LinkedIn. Last year, Massachusetts courts considered the issue of whether a status update on LinkedIn constituted a violation of a non-solicitation agreement. In KNF&T Inc. v. Muller, KNF&T alleged its former employee, Charlotte Muller, violated her non-solicitation agreement by updating her employment on her LinkedIn, which sent a notification to all of her contact, including Ms. Muller’s former clients at KNF&T. Although the court resolved the case on the grounds that Ms. Muller’s new position was in a different industry from KNF&T, it seemed that one of the central issues was that the LinkedIn update was sent to the former employer’s clients. The trend among courts resolving this issue appears to be that public announcements of a new venture or new employment, including status updates on social media, do not violate non-solicitation agreements as long as they are not sent to protected clients, whether directly addressed to them or as part of a general message on a social network. If you are starting a venture in the same industry as your employer and you are restricted by a non-solicitation agreement, you should first read the agreement to see what types of activity it prohibits. And when you announce your new venture, it may be a wise move to ensure that announcement is not directed at protected clients of your former employer by removing them from your social media notifications.
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