Great post from Michael P. Maslanka's work Matters blog on Texas Lawyer. A lot of attorneys are nervous about entering into the fray of social media for this very reason. Here's something to think about when embarking on writing social media posts for employment attorneys.
Let's play claim or no claim: Can a Facebook post violate an
employee's agreement not to solicit former colleagues if he leaves his
employment? The answer: possibly, but not in run-of-the-mill situations.
That’s according to a magistrate judge’s report and recommendation,
issued Jan. 22 and adopted by the U.S. District Court for the Eastern
District of Oklahoma on Feb. 12, in Pre-Paid Legal Services Inc. v. Cahill.
The magistrate judge laid out the basics of the case: The defendant
went to work for the plaintiff company and became a manager. He signed a
nonsolicitation clause prohibiting him from soliciting any former
co-worker from leaving his or her employment and going to work with the
defendant or a company for which he works. He left for Nerium, a company
called that sells skin cream, and allegedly does solicit them through
Facebook. His former employer sued him, seeking injunctive relief. So,
what was his Facebook activity? He posted general information about his
new employer on his Facebook page.
The court summed up the plaintiff's argument: The plaintiff
“complains that Facebook posts that tout generally the benefits of
Nerium as a product and Defendant's professional satisfaction with
Nerium constitute solicitations presumably because some of Defendant's
Facebook ‘friends’ are also [former colleagues of defendant] and may
view Defendant's posts.”
This was a bridge too far for the court to accept. Bottom line from
the court: The plaintiff was unlikely to win its argument that the
Facebook postings violated the nonsolicitation clause, and there was no
evidence that irreparable harm would result if the injunction didn’t
issue. Note that the court said the result might differ if the defendant
was posting directly on the Facebook walls of his former colleagues.
Here is the bonus room: It looks as if the court reviewed all the
decisions on this point (albeit only three).
A final thought: While this case is interesting, it simply applies
common sense to a common situation. Lawyers shouldn’t panic simply
because a case like this involves "social media." The fundamental things
apply as life goes by.