Imagine this situation: One of your key employees – Susie Q — resigns and begins working for a competitor. Susie Q entered into a non-solicitation agreement while employed with your company. You are friends with Susie Q on Facebook, and you see that she has posted an announcement of her new job and a request to get in touch with her if you need her services. Has she violated her non-solicitation agreement with her Facebook post?
The answer is “it depends.” Primarily this depends on the language in your non-solicitation agreement. Does it specifically prohibit her from contacting clients via electronic means, including social media? If so, then she may well have violated her agreement. If not, the answer may depend on additional facts.
Courts are addressing the issues of solicitation of clients and customers via social media with more and more frequency and with mixed results. A key takeaway from these decisions is that employers should specifically address social media solicitation in their agreements. These agreements should be narrowly tailored to fit the business interest it is necessary to protect. Overly broad language will often not be enforced by courts.
If your company uses restrictive covenants, it is a good idea to periodically have these agreements reviewed by your attorney. The enforceability of these agreements varies from state to state. In Kansas, such agreements are enforceable, but only as to business interests that are legitimately protectable. Typically, only certain types of employees should be asked to sign such agreements. Also, to be enforceable, the agreement must be supported by valuable consideration, such as an offer of employment. Mere continued employment is often not deemed to be sufficient consideration. Non-compete and non-solicitation agreements need updating from time to time to reflect the current environment. Social media and its impact on business is very much a part of our current environment.
Please do not hesitate to contact us at (316) 262-2671 if you would like us to review your restrictive covenants. Our employment attorneys are experienced in litigating restrictive covenants and have insight as to how Kansas Courts will interpret them.