SHRM posted an interesting article about how employee use of social media can violate restrictions on solicitation. The article focused on the use of LinkedIn by employees once at their new employer. In one situation, the employee sent a request to connect with a former colleague and when the colleague accepted the request, he was directed to the employee’s new LinkedIn profile which included job postings for the new employer. In the other situation, the employee’s new LinkedIn profile included a description of the new employer, photos of the employer’s products, and directly asked the employee’s LinkedIn connections (many of whom were customers of the former employer) to call for a quote. In the first situation, the court found the employee’s use of LinkedIn did not violate the employee’s non-solicitation restrictions, in the latter, the court found that the post, which actually solicited business from customers of the employee’s former employer, violated the employee’s non-solicitation agreement.
With respect to Facebook, at least one court has held that a public announcement from a new employer that an employee has been hired, does not constitute solicitation (even where customers of former employer see and comment on the post).
Until the case law on this subject is more developed, employers and employees need to understand that while a public announcement about a new hire will probably not constitute solicitation, the more information provided about the new employer (and its products/services, opportunities to transact business or for employment), and the more targeted the announcement, the greater the risk that the social media activity will be characterized as an improper solicitation.