On August 7, 2017, the Illinois Appellate Court, First District, held that a former branch sales manager did not violate the noncompetition covenants contained in his employment contract with his former employer when he transmitted LinkedIn invitations to its employees. Bankers Life and Casualty Company v. American Senior Benefits, LLC, et al., 2017 IL App (1st) 160687 (8/7/2017). The former employer sued for breach of the noncompetition agreement. It alleged that the former employee breached the agreement by attempting to solicit and recruit its employees for his new employer, a competitor, through LinkedIn requests to induce them to sever their employment with the plaintiff and join the competitor. The noncompetition provision stated that during the term of his employment contract and for 24 months thereafter, he was prohibited from inducing or attempting to induce any employee to sever his or her employment relationship or sell insurance for any competitor.
On appeal, the plaintiff contended that the circuit court erred in concluding that the former employee did not induce or attempt to induce the plaintiff’s agents and employees to leave their employment, in violation of the noncompetition provisions of the employment agreement. The plaintiff argued that the former employee sent LinkedIn invitations, which directed the employees to a job posting, as his initial contact to recruit the employees. The question on appeal was whether he intended or attempted to induce the employees to resign or sever their employment. A few courts have considered the issue of whether LinkedIn communications or postings can violate a nonsolicitation or noncompetition agreement, and have reached different conclusions depending on the particular circumstances. In this case, the invitations to connect were sent from the former employee’s LinkedIn account through generic emails that invited the employees to connect with him. The emails did not discuss the plaintiff, mention the competitor, suggest that the employees view the job description or solicit them to leave their employment with plaintiff and join the competitor. The employees had the option to accept, reject or ignore the requests. Whether they chose to click on his profile or access the job posting on his profile page were potential actions for which the Appellate Court would not hold the former employee liable. Additionally, his posting of a job opening on his public LinkedIn page was not an inducement or solicitation that violated his noncompetition agreement. It should be noted, however, that actual and direct recruiting would have violated the noncompetition provisions of the employment agreement.