We have previously covered a case involving ownership of Twitter followers when an employee moves to a new employer, and now turn our attention to a related issue: do an individual’s public Facebook posts about a new job violate a non-solicitation agreement with the former employer?
A federal court in Oklahoma recently faced this issue and ruled that the posts in that case did not violate the non-solicitation agreement. Pre-Paid Legal Services Inc. v. Cahill, No. 6:12-cv-00346-JHP (E.D. Okla. Feb. 12, 2013) (adopting Report and Recommendations for Case No. CIV-12-346-JHP, Jan. 22, 2013)
The case involved a regional vice president of sales, who gave notice that he was leaving his employer. Three days later, he publicly posted general information on his public Facebook pages as well as on some private Facebook pages that he created as part of his mentorship of sales associates in his prior job.
The posts did not describe any job openings at the new employer, nor did they expressly solicit the sales associates to join him at the new employer. The plaintiff/former employer filed a lawsuit in federal court, claiming, among other things, that the defendant not only misappropriated the employer’s trade secrets, but also that the Facebook postings constituted violations of the non-solicitation agreement he signed.
The trial court found no evidence of misappropriation of trade secrets. The trial court upheld the magistrate’s finding that: “There was no evidence presented that Defendant’s Facebook posts have resulted in the departure of a single [employer] associate, nor was there any evidence indicating that Defendant is targeting [employer] sales associates by posting directly on their walls or through private messaging.”
The court also upheld the magistrate’s recommendation that there was no showing that the employer would suffer irreparable harm if the defendant was not enjoined from posting on his Facebook wall regarding his new employer.
Does your company use non-solicitation agreements? If so, do they address social media?