A pair of recent decisions from the Superior Court of Massachusetts illustrates the role a former employee\u2019s social media activity now plays in restrictive covenant cases.<\/p>\n
In KNF & T Staffing , Inc. v. Muller<\/em>, 31 Mass. L. Rptr. 561 (2013), Ms. Muller had signed an Employee Confidentiality and Non-Competition Agreement when she began her employment with KNF & T, a staffing firm with offices in Boston and Westboro.\u00a0 Ms. Muller\u2019s non-competition covenant prohibited her from placing personnel in the \u201cCompany\u2019s Fields of Placement,\u201d which was defined primarily as \u201cthe placement of administrative and office support staff . . . .\u201d\u00a0 Ms. Muller worked with KNF & T for eight years, receiving numerous promotions and raises, and eventually became a Vice President and manager of the Company\u2019s Boston temporary staffing division (the largest and most profitable business unit).\u00a0 She was also in charge of the company\u2019s largest account.\u00a0 Ms. Muller resigned from KNF & T in April 2013 and about 5 months later, began working for Panther Global Group, Inc. and its subsidiary, Total Clerical Services, Inc., a staffing firm headquartered in Boston and a direct competitor with KNF & T in some areas.\u00a0 KNF & T promptly filed suit and sought an injunction.<\/p>\n In determining whether Ms. Muller had breached her employment agreement, the Court stated, \u201c[T]he evidence that Muller has violated\u2014or that she necessarily will violate\u2014the covenants in her agreement with KNF & T. . . is somewhere between very weak and nonexistent.\u201d\u00a0 Specifically, in footnote 5 of the opinion, the Court considered Ms. Muller\u2019s LinkedIn profile, which disclosed her current employer, title, and contact information.\u00a0 Ms. Muller\u2019s \u201cSkills & Expertise\u201d on LinkedIn included \u201cInternet Recruiting,\u201d \u201cTemporary Staffing,\u201d \u201cStaffing Services,\u201d and \u201cRecruiting.\u201d\u00a0 The Court found that there was no specific mention of KNF & T\u2019s \u201cFields of Placement\u201d and that, unless Ms. Muller solicited or accepted business in the \u201cFields of Placement\u201d prior to the expiration of the restrictive covenants, she \u201cwill not have violated the covenant not to compete.\u201d<\/p>\n Somewhat similarly, in Individa, LLC v. DiFonzo<\/em>, 30 Mass. L. Rptr. 390 (2012), a hair stylist, Ms. DiFonzo, signed a Covenant Not to Compete, Non-Solicitation, and Confidentiality Agreement when she began her employment with Invidia.\u00a0 Ms. DiFonzo eventually resigned from Invidia and began working at another salon. \u00a0Four days after Ms. DiFonzo resigned from Invidia, Ms. DiFonzo\u2019s new employer posted a \u201cpublic announcement\u201d on her Facebook page, referencing Ms. DiFonzo\u2019s new affiliation with her new employer.\u00a0 One of Invidia\u2019s clients commented on the post saying, \u201cSee you tomorrow Maren [DiFonzo]!\u201d\u00a0 The client then cancelled her appointment at Invidia for the next day.\u00a0 Further, Ms. DiFonzo had become Facebook \u201cfriends\u201d with at least eight clients of Invidia.\u00a0 The Court held that these two facts were not enough to constitute a solicitation of Invidia\u2019s customers because there was no evidence that Ms. DiFonzo had suggested to anyone on Facebook that they should take their business to her new employer.<\/p>\n These two cases demonstrate that, as the use of social media sites for business purposes continues to grow, courts will increasingly consider former employees\u2019 social media activity in determining whether the employee has breached restrictive covenants.\u00a0 While these two decisions suggest that general references to a new employer may not constitute a breach of a covenant (at least in Massachusetts), more specific posts encouraging clients to move their business to a new employer may be a different story.<\/p>\n","protected":false},"excerpt":{"rendered":" A pair of recent decisions from the Superior Court of Massachusetts illustrates the role a former employee\u2019s social media activity now plays in restrictive covenant cases. In KNF & T Staffing , Inc. v. Muller, 31 Mass. L. Rptr. 561 (2013), Ms. Muller had signed an Employee Confidentiality and Non-Competition Agreement when she began her […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_mo_disable_npp":"","_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[4,9],"tags":[25,16],"acf":[],"yoast_head":"\n