Be Thankful You Didn't Post That: Social Media and Restrictive Covenant Litigation | Practical Law

Be Thankful You Didn't Post That: Social Media and Restrictive Covenant Litigation | Practical Law

Social media has become an unavoidable part of modern life, affecting employers in good ways and bad. For various reasons, many employers want to restrict employees' post-employment social media conduct on platforms such as Facebook, LinkedIn, or Twitter by entering into a non-competition or non-solicitation agreement with their employees. Social media and the internet have been changing how the courts view what is a reasonable and therefore enforceable restrictive covenant. Practical Law has published several resources to help employers navigate this changing legal landscape.

Be Thankful You Didn't Post That: Social Media and Restrictive Covenant Litigation

Practical Law Legal Update w-000-9934 (Approx. 5 pages)

Be Thankful You Didn't Post That: Social Media and Restrictive Covenant Litigation

by Practical Law Labor & Employment
Published on 24 Nov 2015 • USA (National/Federal)
Social media has become an unavoidable part of modern life, affecting employers in good ways and bad. For various reasons, many employers want to restrict employees' post-employment social media conduct on platforms such as Facebook, LinkedIn, or Twitter by entering into a non-competition or non-solicitation agreement with their employees. Social media and the internet have been changing how the courts view what is a reasonable and therefore enforceable restrictive covenant. Practical Law has published several resources to help employers navigate this changing legal landscape.
Social media has become an unavoidable part of modern life. Nearly two-thirds of all adults in the US use social media in some capacity (http://www.pewinternet.org/2015/10/08/social-networking-usage-2005-2015/). As of the third quarter of 2015, Facebook had 1.55 billion monthly active users (http://investor.fb.com/releasedetail.cfm?ReleaseID=940609). Half of all Facebook users have more than 200 friends (http://www.pewinternet.org/fact-sheets/social-networking-fact-sheet/). And every second, two new users join LinkedIn, which reports having more than 400 million members (https://press.linkedin.com/about-linkedin).
Given these statistics, it is not surprising that most businesses now use some form of social media as tools to:
  • Connect and communicate with their customers.
  • Brand and market their products to the public.
  • Gather information about potential employees.
  • Communicate information to the public.
Some employees use their employers' social media accounts to perform their job responsibilities. Other employees use their own accounts during the workday for personal or professional reasons. Employers often want to ensure that they own and control the customer and employee relationships formed on social media after an employee's departure and protect any confidential information shared as a result of those relationships.
The proliferation of social media usage in the workplace has slowly begun to impact the drafting, enforcement, and litigation of post-employment restrictive covenants in several respects:
  • Historically, restrictive covenants had to be limited geographically to be considered reasonable. In the increasingly borderless internet and global economy, geographic boundaries are no longer determinative.
  • Information which once was seen as proprietary, or which took significant effort to compile, is often readily available on the internet and social media, and may no longer be considered a protectable interest.
  • The rapidly changing technological landscape and the speed with which information becomes stale in some circumstances has shortened what is considered a reasonable restricted period for non-competes and non-solicitation agreements.
  • Online connections developed by an employee using an employer's social media account, or using a personal account for business reasons, may be a protectable interest belonging to the employer.
Despite these initial developments, the case law has been slow to catch up to the rapidly evolving social media platforms and the ways they are used. Although some courts have directly addressed social media conduct in the context of restrictive covenants, many new questions remain unanswered by existing case law, such as:
  • To what extent employers can contractually limit or monitor post-employment social media conduct of a departing employee.
  • Whether an employee's LinkedIn connections and Facebook friends formed during the employment period can be controlled or restricted by an employer after an employee's departure. The answer to this question depends on factors such as:
    • whether the employer or the employee owned the social media account at issue;
    • whether the employee was required to use social media as part of the employee's job responsibilities;
    • the employer's social media policy; and
    • the terms of use agreement with the social media platform.
  • Under what circumstances social media conduct constitutes solicitation prohibited by an otherwise enforceable restrictive covenant.
Practical Law recently published a Practice Note, Social Media and Restrictive Covenant Litigation, to help practitioners understand the evolving landscape of social media law and how it impacts restrictive covenant drafting, enforcement, and litigation. It includes recent developments about:
  • How social media is changing the definition of reasonableness in the context of restrictive covenant enforcement.
  • How an employee's social media conduct can violate non-solicitation and non-compete provisions.
  • Drafting tips for employers seeking post-employment protection against competition in the social media age.
For other resources about social media and restrictive covenants, see: