The world is becoming more interconnected every day, and social media has been a big part of that shift. Though most people think of social media in terms of Facebook or Instagram, the site LinkedIn has become increasingly important to professional networking and communication. At the same time, it has created a problem for companies that rely on non-solicitation agreements to maintain their professional edge. It is increasingly difficult to distinguish between a simple LinkedIn connection request and the violation of the terms of an employment agreement, and in an increasing number of cases, it’s been left to the courts to decide whether connecting on social media constitutes solicitation.

Traditional non-solicitation agreements have a specific goal: To prohibit former employees from contacting clients or customers of their previous employer to divert business. Before social media, this was easily structured:  Phone calls, emails, or in-person meetings with clear business propositions were forbidden. However digital interactions have made today’s landscape more complex, and LinkedIn presents a particular challenge because the platform explicitly serves multiple purposes. It is a passive networking tool through which professional connections can be maintained; a job-seeking platform through which professionals can detail their professional accomplishments and career trajectory; and a marketing channel that encourages the promotion of services.

Court cases focused on whether LinkedIn contacts represent solicitation have had mixed results. In 2021, an Illinois court decided that generic LinkedIn connection requests did not violate a non-solicitation agreement, while an earlier New York court ruled differently, deciding that personalized messages sent through the platform were clearly aimed at business development and violated a non-solicitation agreement.

When determining whether social media activity represents solicitation, courts typically examine the following factors:

• Content of communications and whether connections are generic or targeted
• Expectations around client relationships specific to the industry
• How clearly prohibited activities are defined within the agreement
• Whether the intent of the contact was networking or deliberate business solicitation

If you’re bound by a non-solicitation agreement but want to maintain your professional network, you’re encouraged to review the specific language in your agreement carefully, avoid direct messages that could be interpreted as business solicitation, and consider setting up a passive profile without actively reaching out to former clients. You should also take careful notes of all interactions if clients reach out to you first, and consult with legal counsel before engaging with high-value former clients. For assistance in protecting yourself, contact us today to set up an appointment.