We are frequently reminded that the “old” attending networking events and social dinners model of business development will soon be viewed as archaic and simply too costly. Replacing traditional networking events and social dinners is the ever-increasing and efficient use of social media. To this end, companies commonly use social media, such as Facebook or LinkedIn, to market, advertise and communicate with customers. A company’s employees also frequently will add these same customers to their own personal social media accounts as Facebook “friends” or LinkedIn “connections.” Social media is proving to be an effective tool when the company and employee are working collaboratively to achieve the same goal, usually to increase company sales. But things often go amidst a “business divorce” and the employee leaves to work for a direct competitor. When this happens, it is common for the company’s customers or employees to continue to receive status alerts from the company’s former employees, either in the form of automatic updates, usually regarding their new employment, or more often direct communications.
Are the automatic updates and announcements a violation of a non-solicitation covenant? Are direct communications a violation? While the expressed terms of a particular agreement should control the scope and interpretation of the post-employment restriction, the courts have begun to wrestle with technology and the use of social media. While the cases are often very fact-specific, courts have held that a key consideration in determining whether a social media post is an improper “solicitation” is the content and substance of the post and whether the social media activity is passive or active.
To date, courts typically find that “passive, untargeted communications” to former employees and customers do not rise to the level of a “solicitation.” On the other hand, courts have enforced non-solicitation agreements when confronted with active or aggressive social media activity on the part of the former employee. Lawwise.ca can help you guide further regarding employer privacy and level of solicitation.
Employer Action Steps: Employers looking to enforce non-solicitation agreements or other restrictive covenants in the social media age should take the following steps:
- STOP using outdated non-solicitation clauses that do not reference social media. Use agreements that specifically mention social media activity.
- Monitor former employees’ social medial sites to the extent possible. Then, immediately print and preserve any posting by a former employee suspected of violating their agreement.
- Maintain administrative rights to your own social media site. Issues often arise where a disgruntled departing employee is the only person who knows the passwords and usernames and essentially locks the company out of its own social media accounts.
- All employees should be required to sign agreements to provide access, username, and passwords to account information and other software, computer, and devices upon the termination of their employment.
- Having a letter of attorney layers to act on your behalf in business and legal matters is also a good idea. If you are stated in Canada, we would recommend you opt for the power of attorney lawyers in Mississauga.
Name: Notary Point Mississauga
Address: 4287 Village Centre Ct Suite 310, Mississauga, ON L4Z 1S2, Canada
Phone: +1 647-948-7819
