, Derry, New Hampshire

December 5, 2013

Tread carefully on social media

About the Law
Andrew Myers

---- — Social media sites present entertainment, networking and an opportunity for trouble.

A hairdresser switches salons. She posts the news on her Facebook page. Former customers find her. Her old employer sues, claiming the post solicited the salon’s customers, violating the non-compete and non-solicitation agreement signed by the hairdresser.

The vice president of a professional recruitment firm jumps ship to a different firm. She announces the achievement on her LinkedIn page. Court papers arrive, accusing her of breaching the one-year non-compete agreement she signed.

I get occasional questions about non-compete agreements, often from people assuming such restrictions are unenforceable. It’s true the law doesn’t generally favor restraints on trade or competition. But, restrictive covenants are valid and enforceable if deemed reasonable in the circumstances of the case.

Employers have a legitimate interest in protecting trade secrets and contacts employees develop during their employment. The law in most states requires courts to balance whether restrictions are greater than necessary to protect the employer’s legitimate interests against whether there is an undue hardship on the employee.

So, what about the hairdresser who not only posted news of her job change on her Facebook page, but also friended some of her former customers? Here, the court refused to issue an injunction, holding that such actions did not rise to the level of solicitation. In Invidia LLC v. DiFonzo, the Middlesex County (Mass.) Superior Court also held that the goodwill generated by the hairdresser with her customers belonged to her, not the salon.

Then there’s the professional recruiter who announced her new position on LinkedIn. Her old company sought to enforce a one-year non-compete agreement. It went to court claiming the former vice president solicited their customers when she changed her LinkedIn profile, reaching 500 contacts, including many customers.

But the court held no direct competition with the former employer and refused to issue an injunction. The court called the evidence “between weak and nonexistent” in a decision announced Oct. 24, 2013, in KNF&T Inc. v. Muller by the Suffolk County (Mass.) Superior Court.

The executive’s online profile update was apparently general enough, using generic terms like staffing services and recruiting, avoiding reference to the specialty fields specifically promoted by the previous employer. The court’s decision applied narrowly to these facts.

Recent social media cases seem to indicate that mere updates to profiles and pages, which go out to all contacts, including old classmates and relatives, aren’t enough to violate non-compete provisions. Case holdings seem to indicate that some further overt act targeted to particular customers would be required.

But, the common thread in these cases, is that they are all determined on the specific facts of the case with little, if any, precedential value.

Andrew Myers of Derry has law offices in Derry and North Andover. He is a member of the American Association for Justice and the New Hampshire Trial Lawyers Association. Send questions to