Social Media and the Workplace: Federal Court Rules Facebook Posting Does Not Violate Non-Solicitation Agreement
Wage and Hour Defense
by Nicole Kamm
818.907.3235
In the first holding of its kind, an Oklahoma court ruled a former employee’s Facebook posts did not violate non-solicitation agreement with prior employer.
Pre-Paid Legal Services, Inc. (PPLSI) recently received a partial denial from a federal court in response to PPLSI’s request for a preliminary injunction. PPLSI alleged a former sales manager’s posts to Facebook and Twitter put the employee in breach of his non-solicitation agreement.
What did the employee do, exactly, to prompt PPLSI to seek an injunction?
- As a new employee at PPLSI, the employee signed an agreement that prohibited him from soliciting other PPLSI employees for two years after his departure or termination from the company.
- While working for PPLSI, he was promoted to regional sales manager. The employee created incentive programs to reward & encourage members of his sales team – he also created Facebook pages specific to these programs.
- When he took a job with another company, the employee used those social media pages to announce his transition.
- The sales manager also posted messages on his personal social media pages regarding his new employer.
- The employee further requested PPLSI’s employees to follow him on Twitter, after he made the transition to his new company.
PPLSI claimed the former employee’s posts to Facebook and Twitter put him in breach of the non-solicitation agreement. The company sought the preliminary injunction to keep the sales manager from “soliciting” current PPLSI employees using those social media sites.
The court found the employee’s Tweets and Facebook posts did not constitute direct solicitation of PPLSI employees. Rather, they were merely general posts about job opportunities not specifically targeted to the employee’s former coworkers.
The court looked to a case involving solicitation via Facebook, where the employee’s new employer posted an announcement about the employee’s new position and the employee then “Friended” several of his former employer’s clients on Facebook. In that case, the former employer’s injunction request was also denied absent evidence the posts resulted in any actual departures from the former employer to the new employer.
Be advised: California employers should note the law on employee non-solicitation agreements remains unsettled. If you have questions about such agreements or how this case may impact you, please let us know.
Nicole Kamm is an employment defense attorney dedicated to protecting employers from employee claims. Contact her via email: nkamm@lewitthackman.com for more information about employment agreements and protecting your company’s assets.