LinkedIn Posts May Violate Former Employee’s Non-Solicitation Agreement

09/05/2017 / Andrew D. Moran

In a favorable decision for employers seeking to enforce non-solicitation restrictions against former employees, the Federal District Court for the District of Minnesota recently granted a preliminary injunction preventing a former employee from soliciting customers by posting on LinkedIn in violation of her non-solicitation agreement with her prior employer. The court distinguished between the permissible posting of mere “status updates” and the posting of solicitations which, in certain circumstances, can constitute a violation of a non-solicitation agreement. 

In the case of Mobile Mini, Inc. v. Vevea, Liz Vevea worked for Mobile Mini, Inc. as a sales representative. At the outset of her employment with Mobile Mini, Vevea signed an agreement restricting her activities in Mobile Mini’s industry following the end of her employment. Among other things, Vevea agreed to refrain from directly or indirectly soliciting any Mobile Mini customers for 12 months following the end of her employment. 

Less than six months after resigning her employment with Mobile Mini, Vevea joined Citi-Cargo, a portable storage business that directly competed with Mobile Mini. She then updated her LinkedIn account to reflect her new position at Citi-Cargo and made the following two posts:

I’m excited to have joined the Citi-Cargo Sales Team! We lease and sell clean, safe, and solid storage containers and offices. We are locally owned and operated, with local live voice answer. We offer same day delivery to the Metro, and have consistent rental rates with true monthly billing. Give me a call today for a quote. XXX-XXX-XXXX. 

Call me today for a storage container quote from the cleanest, newest, safest and best container fleet in the State of Minnesota. Let’s connect! XXX-XXX-XXXX. 

After learning of these posts, Mobile Mini sued both Vevea and Citi-Cargo, alleging that the posts violated the non-solicitation provision of Vevea’s agreement as they were visible to her 500-plus LinkedIn connections, including one or more Mobile Mini customers. 

The district court granted Mobile Mini’s motion for a preliminary injunction and ordered Vevea to remove posts that advertise Citi-Cargo’s products or services or request viewers to contact Vevea for the purpose of providing such products or services. The court further enjoined Vevea from creating “any similar posts advertising Citi-Cargo’s products or services on LinkedIn until the expiration of the non-solicitation provision in the Agreement[.]” The court stated that its injunction “applies with equal force to any other social media sites other than LinkedIn to the extent that Vevea’s friend list or network on such a site includes at least one Company Customer or their representative.” Importantly, the court noted that its injunction “does not limit Vevea’s ability to post mere ‘status updates’ listing her place of work and contact information.” 

In reaching its decision, the court found that Vevea’s posts were “blatant sales pitches” and rejected her argument that the posts were “mere status updates announcing Vevea’s new position and contact information” – which would likely not be a breach of contract.

Whether a post-employment restrictive covenant is enforceable, and whether a former employee’s conduct constitutes a breach of an enforceable restriction, depends upon the facts and circumstances of each individual case. With that said, employers are sure to rely on the Mobile Mini decision when reviewing the online social media conduct of former employees and making determinations as to whether the conduct crosses the line between passive “status updates” and impermissible solicitation. 

Please contact one of the employment law attorneys at Larkin Hoffman if you have any questions about the case or restrictive covenants in general.