Why Do You Need a Social Media Clause In Your Non-Solicitation Agreements

Understanding The Importance Of Having Social Media In Your Non-Solicitation Agreements

Non-solicitation agreements are a tool commonly used by employers to reduce competition from former employees after their resignation or termination. The agreement will prohibit activities that include soliciting the former employer’s customers, clients, suppliers, vendors, trade partners, and other employees. When drafting their non-solicitation agreements, most employers intend to prevent a former employee from communicating with clients or customers through traditional methods of communication, such as in person or Zoom meetings, telephone calls, letters, and emails. But as social media continues to grow in popularity and reach, many employers may inadvertently fail to include common forms of social media communication, such as LinkedIn, Facebook, Instagram, Twitter, WhatsApp, blogs, and even Snapchat. It’s important for businesses to consult with their Chandler business attorney to verify that their non-solicitation agreements explicitly include all forms of communication, traditional and otherwise.

Solicitation Through Social Media Outlets

The wording of your non-solicitation agreement is critical. Unfortunately, many standard non-solicitation agreements prevent a former employee from generically communicating post-termination with customers, clients, vendors, and other people related to the former employer. But this could be hazardous to employers because the vague wording could be open to interpretation by a court whether social media channels were intended to be included by the employer and employee when they signed the non-solicitation agreement.

In order to avoid any ambiguity and to minimize the risk of the court interpreting a meaning that you as the employer did not intend, it’s crucial to work with your Arizona trademark attorney to expressly state that communication through any social media is included in the non-solicitation agreement. In many cases, it’s wise to provide specific examples of solicitation through social media that would be considered a violation of the non-solicitation agreement, such as requesting followers to tweet back for a price quote or advertising a competitor’s services through a Facebook message.

The exact wording of a non-solicitation agreement will depend upon the nature of your business, what products or services your company provides, and what interest(s) you are trying to protect.

What To Do If You Suspect a Former Employer’s Social Media Activity Is Violating Your Non-Solicitation Agreement

If you suspect that a former employee may be violating your non-solicitation agreement through one or more of their social media accounts, contact your Arizona intellectual property lawyer right away to examine the situation. Whether there is, in fact, a violation will depend upon the language of your non-solicitation agreement as well as the nature and content of the activity on social media.

Recent Case Law Involving Non-Solicitation Agreements

Recent case law indicates that passive social media activity that is non-targeted, such as updating a job description on their LinkedIn account, announcing a new corporate position through a Facebook post, or following a former customer on Instagram is not a violation of non-solicitation agreements.

One noteworthy case from 2017 is Bankers Life & Casualty v. American Senior Benefits, LLC, in which the court ruled that emails inviting former employees to connect on LinkedIn did not constitute a violation of a non-solicitation agreement because the invitations were generic and did not include specifics such as discussing employers or encouraging recipients to leave their jobs. Other cases suggest that targeted, direct sales pitches on social media, or encouraging customers to leave their current supplier for a competitor, were violations of non-solicitation agreements.

What You Should Know

If your business wants to prohibit solicitation through social media accounts, it’s imperative to work with an Arizona business attorney and carefully phrase all non-solicitation agreements with language that directly includes social media, in addition to traditional methods of communication. Employers who believe that former employees may have violated their non-solicitation agreement through a social media account should discuss the content and nature of the activity with their Arizona copyright lawyer. Passive activity is likely not a breach of contract, but active or targeted activity may violate a non-solicitation agreement that might be worthy of legal action.

Experienced Business Lawyer In Arizona

Update your non-solicitation agreements with the trusted legal team at Denton Peterson Dunn. Our attorneys have many years of experience representing businesses of all sizes and hold a deep understanding of Arizona business law. We are ready to guide you through writing a non-solicitation agreement that will hold up in court or to discuss solutions to a potential violation of a non-solicitation agreement by a former employee. Get started today by contacting our office.