Ex-Employee's Friend Requests to Former Coworkers Do Not Violate Anti-Raiding Agreement

Many businesses often fear that a resigning employee will encourage other workers to quit or join him or her at the new employer.  To prevent this from happening, many employers require their employees to execute “non-solicitation agreements” that prohibit any efforts to induce the resignation of other employees for a certain period after the end of employment. A June 26, 2017 decision by the Illinois Appellate Court for the First District sheds light on the type of conduct that constitutes a breach of a non-solicitation agreement.

In Bankers Life and Casualty Co. v. American Senior Benefits LLC, Gregory Gelineau, a former Bankers Life branch sales manager bound by a non-solicitation agreement, sent requests to connect on LinkedIn to three Bankers Life employees after his separation. Bankers Life claimed that Gelineau’s LinkedIn profile included job postings for positions at American Senior Benefits, his new employer, and that if the Bankers Life employees accepted the requests to connect, they could see the postings by viewing Gelineau’s profile. Gelineau responded that he had sent LinkedIn requests to connect to all of his email contacts and not specifically targeted the Bankers Life employees. The appellate court found in favor of Gelineau and upheld the dismissal of Bankers Life’s lawsuit.

The First District found that none of Gelineau’s actions could be construed as a solicitation for Bankers Life employees to separate from the company. The court noted that Gelineau’s requests to connect were not exclusively directed at Bankers Life employees, did not mention Bankers Life or American Senior Benefits and did not suggest that the recipients look at the job postings on Gelineau’s LinkedIn profile or apply for employment at American Senior Benefits. The court also observed that the job postings were not immediately viewable upon accepting a request to connect – instead, the Bankers Life employees had to choose to click on and scroll through Gelineau’s profile before they would see the postings. In the absence of any evidence by Bankers Life that Gelineau had taken any other actions to induce Bankers Life employees to leave employment, there was no way for Bankers Life to show a violation of the non-solicitation agreement.

So when do social media postings violate a non-solicitation agreement? The Bankers Life court examined cases outside of Illinois involving similar fact patterns and concluded that it is the substance of the posting that is determinative. For example, a request to connect directly targeted at former coworkers that referenced the ex-employee’s resignation and included the statement “If you knew what I knew, you would do what I do” could be construed as a solicitation. In short, the more overt and focused the message, the more likely it will be found to violate a non-solicitation agreement.

For many employers, the resignation of an employee – especially a key employee – is a high-stress situation that is often coupled with the belief that the departing employee is engaging in misconduct harmful to the employer.  The lesson to be drawn from Bankers Life and Casualty Co. v. American Senior Benefits LLC is that before commencing costly litigation, employers should be sure that the evidence on which they are relying truly shows that the ex-employee was actively seeking to recruit coworkers and cannot be construed as an innocent communication.