Posting a job want ad on a publicly available social media site does not put a company at risk of breaching a non-solicitation agreement, according to an Indiana appellate court.
The parties in Enhanced Network Solutions Group, Inc. v. Hypersonic Technologies Corp. agreed not to solicit each other’s employees after expiration of their subcontractor agreement. Hypersonic nonetheless hired an ENS employee (Dobson) who responded to a LinkedIn post advertising for an outside sales position.
The court concluded that
we cannot say that Hypersonic solicited or induced Dobson to terminate his position with ENS and to accept a job opening at Hypersonic in breach of the non-solicitation clause of the Agreement. The record clearly supports that Dobson made the initial contact with Hypersonic after reading the job posting on a publicly available portal of LinkedIn. In other words, Dobson solicited Hypersonic.
The court rejected ENS’s argument that Hypersonic solicited the employee by continuing talks with him because “all major steps were initiated and taken by Dobson: he commenced the conversations about the position and he conveyed his terms of employment to Hypersonic.” The court did not rule out a different result if the employer had been more proactive.
The court described the LinkedIn post at issue as “publicly available.” By contrast, private messages about the job opening from Hypersonic to ENS employees, like telephone calls or letters, likely could have constituted solicitation. A grey area arises for invitation only “groups” offered by many social media sites, e.g. if a Hypersonic employee posted the want ad to a group site accessible to 100 invitees, 10 of whom Hypersonic knew were ENS employees. Would the court have deemed the ad as targeted to reach ENS employees?