Will Social Media Make the Non-Compete as We Know It Obsolete?

Despite the ever-shifting world of employment law, one tried-and-true aspect has remained largely unchanged through the years: the non-compete agreement. Invoked by employers to protect legitimate business interests, non-competes may include nuances, but in general, they prohibit employees from accepting a position in direct competition with the employer and/or soliciting the employer’s customers after employment ends. Common provisions relating to post-employment customer solicitations generally include some restriction on contacting, directly or indirectly, the employer’s customers regarding the employee’s new employer or venture. In the pre-internet days, the cases relating to such contracts dealt with letters sent by former employees noting their new job and extolling the virtues of their new employers. But in today’s world, simply updating one’s LinkedIn profile has become the new battleground. Some employers are claiming that an employee’s act of updating his or her LinkedIn profile after leaving an employer for the next constitutes a prohibited solicitation a la the letters of yore. “Employers are in a tough spot on this one,” says Katie Connolly, a labor and employment attorney for Nilan Johnson Lewis. “Social media is such an important part of everyone’s lives, and circumventing non-competes is easy to do with the click of a button, whether intentionally or not. Non-compete agreements must evolve to reflect that.” Connolly notes that employers should reconsider how they draft their non-compete agreements, and ask whether it is necessary to create provisions, such as asking their employees to delete the LinkedIn connections they’ve made while employed there. Regardless, until the courts provide more clear direction on the intersection between non-compete clauses and social media, employers will have to deal with a particularly murky reality. Contact Katie Connolly at (612) 305-7546 or kconnolly@nilanjohnson.com, or Jeff Trauring at (651) 789-1268 or jeff@kohnstamm.com

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