Generic LinkedIn Invitations Do Not Constitute Employee Solicitation In Illinois
After leaving your Illinois-based insurance company, a now-former employee sends a LinkedIn invitation to your remaining employees with his new contact information at a competitor company. In doing so, did that former employee breach the non-compete provision set forth in his employment contract with your company? The answer is “no” according to the Illinois Appellate Court, First District’s recent decision in Bankers Life & Casualty Company v. American Senior Benefits, LLC, et al., 2017 IL App (1st) 160687.
The ruling stems from a lawsuit filed by Bankers Life, which sells insurance and financial products, against one of its ex-employees alleging that he breached a non-solicitation agreement in his employment contract when three Bankers Life employees clicked on the former employee’s LinkedIn profile and noticed positions that were advertised at his new company. According to Bankers Life, the transmission of the LinkedIn invitation constituted an attempt by the former employee to both solicit and recruit his former colleagues to his new employer.
In rejecting that argument, the Appellate Court reasoned that no violation of the non-compete provision had occurred because the LinkedIn emails a.) were “generic,” b.) contained no discussion of Bankers Life or its competitor, c.) made no explicit suggestion that the recipient view a job description of the ex-employee’s profile page, and d.) make no solicitation to have the employees join the competitor. Rather, the emails simply “contained the request to form a professional networking connection.” Plus, after receiving the generic emails, the recipients were in the driver’s seat in terms of how – or even whether – to take any further action in terms of connecting.
The very fact that this lawsuit was filed as the result of a simple LinkedIn invitation demonstrates the lengths that some employers will go to enforce non-compete or non-solicitation clauses in the world of social media. In addition, the dearth of applicable Illinois precedent on the issue and the Appellate Court’s reliance on decisions from five other states in making its ruling both reveal that this is an increasingly emerging legal topic for employers to both be aware of and stay knowledgeable about.