Whether a former employee breaches her non-compete and/or non-solicit agreement by publishing her new job with a competitor to her LinkedIn contacts, many of which include “prohibited customers” is an unsettled question. As you may imagine, the cases that address this question are few. A recent opinion issued by a Massachusetts Superior Court may have addressed it more than it realized, though.
In KNF&T Staffing, Inc. v. Muller, the defendant-employee was employed by the plaintiff staffing firm for several years. When she resigned, she was subject to a non-solicitation agreement, which prohibited her from recruiting or referring potential employees for placement in certain fields and industries. The prohibition was in place for 1 year and applied only to placement with clients within a 50-mile radius of the plaintiff’s offices. And, as I mentioned, it prohibited only her recruitment efforts for certain fields that she’d been responsible for at her former employer.
At the time she resigned, she initially took a position in HR, in which she apparently was not charged with recruiting and referral duties, and, therefore, was not in violation of her agreement. But, about five months after resigning, she went back to the recruiting industry, this time working for a competitor of her former employer. The former employer sued, seeking to have her enjoined from what the employer asserted was activity in breach of the agreement.
Specifically, the employer alleged that she had attempted to solicit an employee from one of the employer’s customers. The court found that, even if the solicitation had occurred, it would not have violated the agreement because the individual was not in one of the covered fields. Thus, she was free to solicit as she liked.
Now, here’s where the LinkedIn twist comes in. In a footnote, the court wrote that the same rule would apply “to the evidence that [the employee] currently has a LinkedIn profile disclosing her current employer, title, and contact information, and counting among her ‘Skills and Expertise’ such things as ‘Internet Recruiting,’ ‘Temporary Staffing,’ ‘Staffing Services,’ and ‘Recruiting.’”
The employee was free to recruit (i.e., solicit) in all fields and industries except those specifically identified in the non-solicitation agreement. Thus, by posting on her LinkedIn profile that she recruited, as a general matter, did not violate the agreement. What the footnote does not say directly but does seem to imply is that the answer may have been different if she’d included the prohibited fields and industries in her LinkedIn profile.
Or at least that’s what a lot of my colleagues have written, anyway.
In reality, that’s not the case. Even if she had included the prohibited fields in her LinkedIn profile, she would not have been in violation of the agreement unless she actually “solicited, recruited, or hired away” an employee in one of the prohibited fields and within the 50-mile radius. Posting that this was a “skill or expertise” doesn’t mean that she’d actually engaged in it. Considering it or advertising those skills would not violate the contract. Only if she successfully put those skills to work to hire away an off-limits person would there be a potential breach of the contract.
Lesson Learned? Non-solicitation and non-competition agreements are generally disfavored by courts. Even in a state like Delaware, which is one of the most employer-friendly courts in this area of the law, will enforce contracts only to the extent that the contract requires it. In other words, the words matter—a lot. Have your contracts reviewed by trusted employment counsel.
KNF&T Staffing, Inc. v. Muller, No. 13-3676-BLS1 (Mass. Super. Ct. Oct. 24, 2013).