Ok, so understanding the case I am about to discuss takes some understanding of how LinkedIn works (and from personal experience, I know that being able to figure out how to read this post does not necessarily mean one is “linked in” to LinkedIn’s mechanics). Most of us at least know that LinkedIn is the Facebook for professionals, and it’s designed to be a professional networking site. Here’s some other LinkedIn basics: A LinkedIn user sets up a profile that includes, among other things, the user’s current and former employers. Users can invite anyone to become a “connection,” which is something akin to Facebook “friends.” Users “endorse” their connection’s skills and expertise in various aspects of their professional lives. (A less publicized aspect of LinkedIn seems to be that it gives employees something business-looking to do mid-afternoon when they become drowsy or bored at their desks.) So what happens when an employee bound by a non-competition agreement leaves employment to go to work for the employer’s competitor and then throws all caution to the wind by updating her profile to reflect her new employment, which updated profile is then visible to her “connections,” many of whom happen to be contacts she had while employed with employer number one? A lawsuit ensues, of course.
In KNF&T Staffing, Inc. v. Muller, et al., C.A. No. 13-3676 (Mass. Super. Oct. 24, 2013) (Billings, J.), an employee staffing firm sued Muller and her new employer after Muller updated her LinkedIn profile. The update sent a notice to over 500 of her contacts, including current and former clients of her former employer. The staffing firm contended that updating a LinkedIn profile was the same as mailing a letter to all of her professional contacts soliciting their business. Fortunately for Muller, the court concluded that as long because Muller did not solicit or accept business in the fields in which KNF&T did not recruit, she did not violate the covenant not to compete.
The court’s ruling was narrow, and, like other courts’ rulings before it, gave little guidance as to whether a LinkedIn, Facebook, blog or other social media post could constitute a breach of a non-competition agreement. One thing that’s become obvious is that courts have been unwilling to rule out online postings as activity that could constitute breach of agreements. When drafting non-competition or non-solicitation agreements, employers should consider adding language such that which would require departing employees to break LinkedIn connections with customers or coworkers.