Using LinkedIn As A Recruiting Tool – It’s OK As Long As You Don’t Go Too Far

Policies Requiring That Personnel Records Be Confidential Violate National Labor Relations Act

If an employment agreement prohibits an ex-employee from recruiting personnel from his or her former employer, can that employee invite his or her former colleagues to connect via LinkedIn? In a recent decision, an Illinois court held that sending invitations for LinkedIn connections did not violate a contractual prohibition against soliciting employees away from a former employer. Bankers Life & Casualty Co. v. American Senior Benefits LLC, 2017 IL App (1st) 160687 (August 7, 2017).

The case involved the departure of defendant Gregory P. Gelineau from his position as the branch sales manager of the Warwick, Rhode Island office of plaintiff Bankers Life. Gelineau joined defendant American Senior Benefits LLC (“ASB”) a Bankers Life competitor. Gelineau’s employment contract with Bankers Life specified, among other things, that for the two years following his employment, and within the territory serviced by the branch office he managed, Gelineau would 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 [Bankers Life] to curtail, resign, or sever a relationship with the company;…”. According to Bankers Life’s complaint, Gelineau violated this provision by sending invitations via LinkedIn to three employees of the Bankers Life Warwick branch office, inviting them to “connect” with him. Gelineau’s LinkedIn profile contained a link to an ASB job posting.

In seeking summary judgment with respect to Bankers’ Life breach of contract claim, Gelineau acknowledged that he sent all of the individuals on his email contact list “LinkedIn generic e-mails asking them to form a professional connection on social media.” However, he disclaimed having made individualized overtures in an effort to cause anyone to leave Bankers Life.

The trial court granted summary judgment for Gelineau (determining that there was no genuine issue of any material fact that, if true, would have supported Bankers Life’s claim), and the Illinois Appellate Court affirmed that decision. In so holding, the Bankers Life Court viewed the LinkedIn invitations as “generic e-mails that invited recipients to form a professional connection” that did not refer either to Bankers Life or to ASB. There was no suggestion that the recipients of the invitation should view the ASB job posting on Gelineau’s profile page. Recipients had the option of deciding whether to “connect” with Gelineau on LinkedIn. Even if they did connect, additional steps were necessary in order to view Gelineau’s profile, and further actions would then be needed to access the ASB job posting on Gelineau’s LinkedIn page. As such, the Court concluded that Gelineau did not solicit Bankers Life employees within the restrictive geographic region to terminate their Bankers Life employment.

In making this decision, the Illinois Court discussed and cited decisions from Connecticut, Indiana, Massachusetts and Oklahoma in which courts had previously held that LinkedIn invitations or entries on other social media sites did not cross the line into improper solicitation of employees or customers. BTS, USA, Inc. v. Executive Perspectives, LLC, 2014 WL 6804545 (Conn. Super. Oct. 16, 2014); Enhanced Network Solutions Grp. v. Hypersonic Techs., 951 N.E. 2d. 265 (Ind. Ct. of App. 2011); Invidia v. DeFonzo, 2012 WL 5576406 (Mass. Super. Oct. 22, 2012); PrePaid Legal Services v. Cahill, 924 F. Supp. 2d 1281 (E.D. Okla. 2013)

The Bankers Life Court, however, noted that a contrary decision had been rendered in a Michigan case, Amway Global v. Woodward, 744 F. Supp. 2d 657 (E.D. Mich. 2010). In that case, however, the social media usage affirmatively encouraged action on the part of customers or employees. In Coface, while a no-compete contract was still in effect, the defendant posted on LinkedIn that he had formed a new company and the posting affirmatively encouraged professionals to contact him to apply positions with that company. He also used Facebook “friend” requests to contact current employees of his former employer. (Coface also involved a restrictive covenant entered into as part of the sale of a going business; such restrictions historically have been more readily enforced by courts than are restrictions contained in routine employment agreements). In Amway Global, the former employee’s social media posts actively encouraged his former employer’s employees to change jobs, in that they stated “If you knew what I knew, you would do what I do.” 744 F.Supp.2d at 673.

Clearly, as the Bankers Life Court noted, it is the substance of the communication, not the means used to convey the message, that is crucial. If an invitation or posting is a merely a facially neutral, passive invitation to connect, that communication will likely not be deemed to be a “solicitation” violative of a restrictive covenant contract. However, if the posting goes further, and conveys the message that customers or employees should move with the poster to his or her new firm, such communications will likely be viewed as crossing the line into prohibited solicitations that may expose the poster to liability (assuming, of course, that the restrictive covenant contract as issue is valid and enforceable).

In its suit, Bankers Life also alleged that Gelineau directed subordinates at ASB to contact employees of the Bankers Life Warwick office concerning potential ASB employment. Although Bankers Life presented evidence that one of Gelineau’s subordinates at ASB sought to recruit at least one Warwick-area Bankers Life employee, Bankers Life was not able to establish that the subordinate’s action was taken at Gelineau’s direction (or event that it had been suggested by Gelineau). Bankers Life also presented evidence the texts sent by Gelineau to others at ASB revealed that Gelineau had used LinkedIn to recruit some Bankers Life employees, those prospective recruits worked in Bankers Life offices outside the Warwick, Rhode Island territory. Consequently, they were beyond the scope of the prohibitions contained in Gelineau’s employment contract with Bankers Life.

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Contributing Editors: Ernest Irons, Daniel V. Kinsella

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