Any restrictive covenant requires that an employer have a protectable interest. Examples of protectable interests include customer relationships and trade secrets or other confidential information (such as confidential customer lists) acquired by the employee through employment. An employer’s social media resources alone, including its platform usernames, passwords, and contacts, may constitute valid protectable interests under certain circumstances. In fact, some courts have held that social media accounts such as MySpace and Twitter are a protectable interest.
If a court determines that a protectable interest exists, it will enforce a restrictive covenant to the extent reasonably necessary to protect that interest. To be enforceable, the covenant must be reasonable as to time (length), scope (business to be protected), and geography (area to be protected). This inquiry is fact-based.
Generally, courts consider whether the restrictions placed upon the former employee are greater than necessary to protect the employer’s interest. Courts have demonstrated reluctance to interpret restrictive covenants as prohibiting former employees from socializing through online media with their former colleagues and customers. As examples, Courts have declined to interpret non-solicitation agreements as prohibiting former employees from becoming Facebook friends with their former employers’ clients and from posting job opportunities on their LinkedIn pages that their former colleagues could see.
Based on recent rulings, former employees will not be found to have violated a non-competition or non-solicitation agreement simply by posting basic information on social media, such as updating job information and location. Instead, courts have interpreted restrictive covenants more narrowly as prohibiting more targeted communication between the former employee and third parties.
What does this mean for employers?
Generally, restrictive covenants, particularly non-competition agreements, are viewed as a restraint of trade and, as a result, against public policy. Restrictive covenants should be drafted in light of such policy and counsel should assume that any covenant will be viewed in the light most favorable to the employee (or former employee). As a result, employers often fare better in court with limited non-competition/non-solicitation covenants that are narrowly tailored to the business interests the employer is seeking to protect.
Whether social media usage by a former employee violates a post-employment restrictive covenant will depend on the particular language of the covenant and on the conduct of the former employee. Although a restrictive covenant need not explicitly reference social media, employers increase their chances of protecting their information, customers, and remaining employees if they expressly mention social media use in their restrictive covenants, and tailor the restrictive covenants to the unique aspects of social media. This will help ensure that employees bear responsibility for breaching any post-employment restrictions, even in cases of mistake, ignorance, or willfulness.
Contact the attorneys at York Bowman Law, LLC for assistance with drafting restrictive covenants for your workforce.