POSTING JOB OPPORTUNITY ON LINKEDIN PROFILE FOR NEW EMPLOYER DID NOT VIOLATE NON-COMPETE

A fact of life in modern business is an employee’s use of social media, or, in some cases, a former employee’s use of social media, and how it fits in with any post-employment restrictions to which they may be subject. In Bankers Life and Casualty Co. v. American Senior Benefits LLC, 2017 IL App (1st) 160687- U (June 26, 2017), the Illinois Court of Appeals affirmed a lower court’s ruling that a former employee’s email communications sent to his ex-colleagues asking to connect on LinkedIn and whose LinkedIn profile contained a job posting from his new employer, was not a violation of his non-competition agreement.

Gregory Gelineau was hired by Bankers Life in 2004 as a branch sales manager in Warwick, Rhode Island and in 2006, he signed an employment agreement containing certain non-competition provisions that stated:

“During the term of this Contract and for 24 months thereafter, within the territory regularly serviced by the Manager’s branch sales office, the Manager shall not, personally or through the efforts of others, induce or attempt to induce:

(a) any agent, branch sales manager, field vice president, employee, consultant, or other similar representative of the Company to curtail, resign, or sever a relationship with the company;

(b) any agent, branch sales manager, field vice president or employee of the Company to contract with or sell insurance business with any company not affiliated with the company, or

(c) any policyholder of the company to relinquish, surrender, replace, or lapse any policy issued by the company.”

Gelineau’s employment with Bankers Life ended on January 15, 2015 and he went to work as a senior vice president at American Senior Benefits (“ASB”), which Bankers Life regarded a direct competitor and which, according to Bankers Life, had hired and retained many former Bankers Life employees. In August 2015 Bankers Life filed a complaint against Gelineau, among others, which included a breach of contract claim in which it alleged that after joining ASB, Gelineau recruited or attempted to recruit Bankers Life employees and agents from the Warwick branch by sending LinkedIn requests to connect to three Bankers Life employees. It alleged that the employees would then click onto Gelineau’s profile and see a job posting for ASB. Bankers Life also alleged that Gelineau directed his ASB subordinates to contact Bankers Life employees and agents to seduce them to leave Bankers Life and join ASB.

Gelineau moved for summary judgment, stating that he did not recruit any Bankers Life employees or agents in his area, did not direct subordinates to do so and did not use LinkedIn to send direct messages to Bankers Life employees or agents in the Warwick area for the purpose of hiring or offering them opportunities at ASB. Instead, he stated that all the people on his email contact list were sent LinkedIn generic emails asking them to connect. In response, Bankers Life offered two affidavits. One was from an employee who stated he had received invitations to connect on LinkedIn from Gelineau and one of his ASB subordinates and that he saw the job posting. The other was from a Bankers Life officer stating that Bankers Life needed more discovery to respond to the motion. Replying, Gelineau submitted an affidavit from that same subordinate, which stated that Gelineau had asked him not to recruit Bankers Life agents or employees in the Warwick area. The trial court granted summary judgment to Gelineau, stating that Bankers Life failed to identify any solicitation or other breach of contract by Gelineau, a ruling which Bankers Life appealed.

On appeal, Bankers Life argued that a material issue of fact existed regarding whether or not Gelineau induced or attempted to induce Bankers Life employees and agents to leave Bankers Life in violation of the non-competition provisions when he “affirmatively sent the LinkedIn invitation to the three employees, that the invitations directed its [sic] recipients to a job posting, and that it was Gelineau’s modus operandi to first utilize LinkedIn as a first step in recruiting Bankers Life employees.” The appeals court noted that the question before it was whether the emails sent through Gelineau’s LinkedIn account to the three employees and his other LinkedIn activity sought to induce or attempted to induce the employees in the Warwick office “to curtail, resign, or sever a relationship with Bankers Life,” in violation of his agreement.

To answer that question, the court looked at several cases from other jurisdictions that had weighed similar issues. It noted that in BTS, USA, Inc. v. Executive Perspectives, LLC, 2014 WL 6804545 (Conn. Super. Oct. 16, 2014), the defendant webpage designer updated his LinkedIn account when he left his former company and also made a LinkedIn posting that encouraged his contacts to “checkout” a website he had designed for his new company, BTS. The former employer claimed this violated his non-compete agreement but the court disagreed, noting that there was no evidence that any BTS customer actually viewed or visited the former employee’s LinkedIn page or did business with the new employer.

Conversely, it noted that other courts had ruled the opposite way, notably in a Michigan case, Amway Global v. Woodward, 744 F. Supp. 657 (E.D. Mich. 2010) where the defendant employee posted on his LinkedIn page “If you knew what I knew, you would do what I do.” He argued that his LinkedIn postings and other social media postings could not be considered solicitations because they were “passive, untargeted communications.” The court disagreed, and stated “it is the substance of the message conveyed, and not the medium through which it is transmitted that determines whether a communication is a solicitation” and held that this defendant’s message would easily be characterized as a solicitation.

Based on these cases, the court determined that Gelineau’s invitations to connect on LinkedIn were generic emails that did not contain any discussion of Bankers Life and did not mention ASB. It further determined that the Bankers Life employees had the option to connect or not and once connected their decision to click on Gelineau’s profile or to access a job posting on his LinkedIn page were not something for which Gelineau could be held responsible and that posting a job opening on his LinkedIn profile did not constitute an inducement of solicitation in violation of his non-competition agreement. In fact, it said “[t]o violate his contract, Gelineau would have to, directly recruit individuals working in the Warwick, Rhode Island area” and it found no such conduct.

While it appears that Bankers Life was facing an uphill battle in this case because the court essentially determined that Bankers Life had no evidence that Gelineau’s activity on LinkedIn was solicitation as defined in the non-compete agreement, it illustrates why employers should be careful in defining “solicitation” in their agreements and consider doing it in such a way that it encompasses at least the types of thinly-veiled solicitations on social media seen in Amway Global.

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