Have a non-compete? Things to consider when updating your online profile

Can your former employer sue you for violating your non-compete just for announcing your new job online? Well, one employer just did.

Many businesses require their employees to sign broad non-compete and non-solicitation agreements (known as “restrictive covenants”; we’ll refer to both as “non-competes”) that seem to prevent departing employees from working in any job that even remotely “competes” with their former employer, or from “soliciting” any person or business in the industry or business where they have been working.

Departing employees who have signed a non-compete (usually, they have no choice) may wonder if they can be sued merely for posting a career move on LinkedIn, Facebook or other social media. Fortunately, so far, courts are reluctant to find that generally-worded career updates alone are prohibited “solicitation” or “competition.”

A Massachusetts court recently addressed this question in KNF&T v. Muller, No. 13-3676-BLS1 (October 23, 2013). Muller worked for many years as a personnel recruiter for KNF&T. After she took a job with another personnel agency, KNF&T sued her, claiming (among other things) that she violated her non-compete, which barred her from “engaging in any activity… involving personnel placement” where it had made placements. KNF&T argued that Muller breached her non-compete by updating her LinkedIn profile, which, in turn, automatically sent notice to her 500+ online connections.

The court found that Muller’s LinkedIn post about her “current employer, title, and contact information” and recruiting and staffing experience did not violate the non-compete. It might have had a different view if Muller had added to her LinkedIn profile industries or professions KNF&T had targeted or if she appeared to be going after its business.

The takeaway? When leaving a job where you signed a non-compete, you want to be careful when posting new employment status online. Be general in describing areas of expertise, what you did in your former job, and what you’re doing in the new one.

Bear in mind that non-competes vary and the wording of yours is what really matters. If you’re concerned about what you can or cannot do under your non-compete, consult an employment lawyer, preferably one experienced in dealing with restrictive covenants.