A recent decision by an Illinois Appellate Court held that making a connection on LinkedIn with former colleagues (even with a little intent to recruit them via LinkedIn) by a former employee subject to a non-solicitation provision is not a violation of the underlying employment agreement.
In Bankers Life and Casualty Co. v. American Senior Benefits LLC., et al, Case No 2017 IL App (1st) 160687, Bankers Life filed suit against Gregory Gelineau (among others) a former Branch Sales Manager out of its Warwick, RI office for breach of his employment agreement. In 2006, Mr. Gelineau signed an employment agreement which included certain restrictive covenants including the following:
“During the term of this Contract and for 24 months thereafter, within the territory regularly serviced by the Manager’s branch sales office, the Manager shall not, personally or through the efforts of others, induce or attempt to induce:
(a) any agent, branch sales manager, field vice president, employee, consultant, or other similar
representative of the Company to curtail, resign, or sever a relationship with the company;
(b) any agent, branch sales manager, field vice president or employee of the Company to
contract with or sell insurance business with any company not affiliated with the company, or
(c) any policyholder of the company to relinquish, surrender, replace, or lapse any policy
issued by the company.”
Mr. Gelineau left his employment in early 2015 and was hired by a direct competitor. In August 2015 Bankers Life filed suit alleging that Mr. Gelineau violated his contract by recruiting or attempting to recruit employees from the Warwick office through LinkedIn requests to connect.
Bankers Life argued that the invitations Mr. Gelineau sent (there was no dispute that he did this) directed the recipients to a job posting and that he was using LinkedIn as the first introduction to joining the competitor (there was a text message that suggested Mr. Gelineau was using LinkedIn to recruit new employees). The Court disagreed with Bankers Life and concluded that the emails sent by LinkedIn by Mr. Gelineau’s account did not amount to a violation. In reaching its decision the Court noted that the emails from Gelineau’s LinkedIn account were generic invitations. These emails made no mention of Bankers Life, the competitor, no solicitation, or other language encouraging a course of conduct by the employees out of the Warwick office. The recipients of the LinkedIn invitations had the option of not connecting with Mr. Gelineau and did not need to click on his profile. Accordingly, whether the employees did so was outside of Mr. Gelineau’s control and accordingly “did not constitute an inducement or solicitation in violation of his noncompetition agreement.”
Employees subject to certain restrictive covenants may be able to connect via LinkedIn with former colleagues (and maybe former clients) without violating a non-solicitation agreement. However, if you do so, tread carefully and ensure that any communication you make uses LinkedIn’s generic email system and that you do not embellish it in anyway.
The employment attorneys at Maduff & Maduff are dedicated to helping you to understand your rights and protecting Executives and the Companies that hire them from overbearing restrictive covenants. Contact us for more information and to see how we can help you today.