Can you breach your restraint restrictions in your employment contract using LinkedIn?
So you’ve decided to move on with your career and taken up an exciting role with a competitor. The problem is you signed a restraint that, on its face, prevents you from poaching employees and clients for 6 months.
You move to your new employer and all starts well. You think you are abiding by your restraints and you haven’t contacted previous clients or employees and don’t intend to for the life of the restraint.
However, you decide to update your Linkedin page and change your employer name and give a wonderful summary of the new employer and how it “provides exceptional service in advising on and servicing widgets” and that it is superior to all others in the widget market. You then go on to use other colourful descriptors to distinguish your new employer as being superior to your competitors.
In moving to your new employer you retain all your contacts on your Linkedin contact list, including employees and customers of your old employer. Soon after arriving at your new employer you post an article on Linkedin inviting all your contacts to visit your new employer’s website saying how wonderful they are and what amazing and superior services they can provide compared to the competitors.
Can such conduct amount to solicitation of clients and/or employees of your old employer under your restraint?
Obviously restraint cases are extremely fact sensitive, but potentially ‘yes’, it could be seen as attempting to solicit/poach clients and employees (contained in your Linkedin contacts list) over to your new employer – so be careful. Whilst decisions so far suggest otherwise, it’s only a matter of time, in my view, and with the right evidence being put before the court.
What Case Law says…
In the decision of Tipto Pty Ltd v Yuen  NSWSC 1086 the Court was not prepared to find an employee had breached his non-solicitation restraints by merely contacting or having on his LinkedIn contact list, clients of his previous employer.
In the US decision of BTS USA Inc v Executive Perspectives, LLC 2014 WL 6804545 (Conn Super 2014), a former employee posted his new job with a competitor to his LinkedIn account. He then, after updating his LinkedIn account to show his new employment, sent an invitation to his contacts to look at the new website he had designed for his new employer. Some of the contacts in the employee’s LinkedIn networks were customers of his former employer.
The employer brought a claim that the former employee had violated his post-employment restraints by soliciting former customers through his LinkedIn conduct.
The court rejected these claims, finding that the former employee announcing his new employment and inviting individuals to visit his new employer’s website did not constitute solicitation because (1) there was no evidence any clients or customers actually received (or viewed) those posts; (2) the posts would only be viewed by customers whose settings were set up to receive the posts; and (3) there was no evidence that any customer actually accepted the invitation and viewed the new employer’s website (or did business with the new employer as a result of the Linkedin broadcast).
This US decision was recently referred to positively by the Court in the New Zealand High Court decision of Mike Pero (New Zealand) Limited v Krishna  NZHC 1255 where it held that the Linkedin profile contents of an ex-employee, where he published details of his new employment and invited people to visit the website, did not amount to solicitation of clients.
What you need to watch out for on social media
Whilst these cases suggest that merely changing your status on social media sites such as Linkedin, Twitter, Facebook etc or even going slightly further and adding commentary and sending out invitations, would not amount to solicitation, they, like all restraint cases, turned on finely balanced factual scenarios. With the right evidence things could certainly go the other way.
This area remains largely untested and these scenarios are still in relative infancy as the community continues to grapple with social media and its impact on our working and personal lives and the mixture of the two. This specific issue will find more and more air time in restraint cases before the courts and courts will be willing to restrain employees (and ex employers potentially recover damages) on an employee’s improper use of Linkedin and other social media forums under the bind of a restraint.
So, if under an effective restraint, placing comments on your social media pages where your client list contains your ex employer’s clients and its employees that say things like “my new firm provides exceptional service in widget production” or comparing your new employer to your competitors and its superiority and ‘firing off’ invitations and articles and posts to your Linkedin contact list, may be a ‘red rag to a bull’ and may not go unnoticed or unchallenged.
Removing your ex employer client contacts and employees from your contact list on such sites and for the life of the restraint may be your safest option, otherwise be careful in your social media activity whilst bound by a restraint. Defending restraint cases are very expensive, very draining, stressful and not the best start to a career with a new employer.
Have any questions?
If you have any questions or need legal advice, you can get a Quick Consult with Luke Connolly or other lawyers with similar expertise. With Quick Consult, from a transparent, flat fee of $49, a lawyer will call you back within 1-2 days to answer your questions.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.