Did former employee’s social media posts violate non-solicitation agreement?


After one of the regional vice presidents left your organization to work for a competitor, he posted information about his new employer on Facebook, touting his professional satisfaction with that company’s product. Since his departure, he has been actively posting information relating to his new employer on his personal Facebook page, and his Twitter account has generated invitations to your associates to join the social networking site. Believing that his social media activity breached your company’s non-solicitation agreement, your organization is seeking to enjoin his Facebook and Twitter activities. Will it be successful?


Probably not. In a case with similar facts, a federal court in Oklahoma ruled that an employee’s ongoing posts to his personal Facebook page relating to his new employer did not constitute solicitation under the terms of his former employer’s non-solicitation agreement. There was no evidence that the employee either intended to or had solicited anyone other than a single colleague to leave. As a result, the employer could not show that it was likely to succeed on the merits of its breach-of-contract claim regarding the Facebook posts or that it would suffer irreparable harm if the employee was not enjoined from posting to his Facebook page. Specifically, there was no evidence that the Facebook posts resulted in any flight from the employer to the employee’s new establishment. Moreover, the non-solicitation agreement lacked specificity as to the conduct the employer wished to prohibit. Had it wanted to prohibit the social networking activity, it could have provided for that in its non-solicitation agreement, the court observed.

As for the employee’s Twitter invitations to his former employer’s sales associates, there was no evidence that the individuals were targeted to “follow” the employee on Twitter or that his Twitter feed contained any information about either his former or new employer. Moreover, contrary to the employer’s assertion that the employee may have sent out an email blast, there was evidence that the invitations were self-generated by the social media site on behalf of the employee. Thus, the employee’s social media activity did not violate his former employer’s non-solicitation agreement.

Source: Pre-Paid Legal Services, Inc. v. Cahill (EDOkla 2013) No. 12-CV-346-JHP.

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