Let’s say a company has an employee who is connected with the company’s customers through social media, on sites like Facebook and LinkedIn. And let’s say that after the employee departs for a competitor, the competitor posts an announcement on the employee’s Facebook page that she has joined the competitor. Customers see that announcement and want to follow the employee to her new company. Has there been a violation of the employee’s non-solicitation agreement?
So far, very few courts nationwide have had an opportunity to address questions like this one at the intersection of the law of restrictive covenants and social media. But last month, a Massachusetts Superior Court judge had such an opportunity, and issued a decision answering my question with a resounding “No.” The decision, in Invidia, LLC v. DiFonzo, involved yet another hair-dresser noncompete dispute. (A disproportionate number of MA noncompete cases involve hair salons.) The former employer — Invidia –sought an injunction to enforce a two-year customer non-solicitation restriction against a hair stylist — Ms. DiFonzo — who went to a competing salon. To support its claim, Invidia pointed to evidence that soon after her resignation:
her new employer posted a ‘public announcement’ on Ms. DiFonzo’s Facebook page, noting DiFonzo’s new affiliation.
In the comment section below that post, a customer posted a comment indicating that she saw the post and would see the employee for an appointment at the new salon. Invidia also pointed out that DiFonzo had become Facebook “friends” with at least eight clients of Invidia and that after her departure and the various postings, 90 clients either did not keep their scheduled appointment, canceled, or failed to schedule a future appointment.
Superior Court Judge Paul Wilson was unimpressed with these facts and Invidia’s arguments based on them, observing that:
it does not constitute ‘solicitation’ of Invidia’s customers to post a notice on Ms. DiFonzo’s Facebook page that Ms. DiFonzo is joining [the new employer].
The judge distinguished this general announcement — which I think is akin to the “wedding style” announcements commonplace in the financial and professional services industries (generally found not to be solicitations) — from the “very different matter” of directly contacting the customer to tell her she was moving to the competitor salon. Judge Wilson summed up the distinction as follows:
If [Invidia’s] 90 clients are accustomed to communicating with Invidia through Facebook, they are probably Facebook-savvy enough to locate Ms. DiFonzo’s Facebook page after she left Invidia. So long as they reached out to Ms. DiFonzo and not vice versa, there is no violation of the nonsolicitation provision of the Agreement.
The result seems logical and underscores an important lesson for employers that want to be able to circumscribe employee’s social media interactions with customers after they leave. If you encourage your employees to interact with customers via social media sites while they are employed, you need to think proactively about what will happen to those relationships and electronic interactions after the employee has departed. This requires development of policies and contract language that at least attempts to curtail efforts by employees to continue and capitalize on those relationships on behalf of a competitor.