In today’s digital age, it’s not unusual to have an online presence, especially if you are running a business. Whether you’re a start-up or an already established company, you can reap rewards by being active on social media. However, what most employers don’t think about when encouraging employees to develop a solid online presence are the risks when an employee stops working for the company. Including solicitation.
Here, we talk about what businesses should be aware of and what does not constitute a solicitation on social media.
Use of social media platforms
To run a successful business, you are likely to increase your presence on social networks. Like LinkedIn, Facebook, Twitter and Instagram. By doing so, your employees build strong relationships with your clients, suppliers and current employers. They gain their trust, gather contacts and maintain a professional network.
Of course, as an employer looking to protect a company. The best thing to do in this scenario is to sign a non-solicitation agreement or ensure there is a clause in the employment contract that specifically addresses social media. However, there’s a fine line between social soliciting and mere online communication. This means that it’s hard to prove that an employee is trying to solicit a client from you rather than posting messages publicly.
What is considered solicitation when it comes to social media?
Solicitation in social media is when a departing employee uses the contacts and connections they gained during their employment for their personal use and growth. For example, when a departing employee directly or indirectly makes an offer, accepts an offer, shares trade secrets and other confidential information with a former client via their personal social media this is considered solicitation.
However, proving that a former employee is soliciting customers from the company they parted with may be a bit of a challenge. Let’s say an employee updated his/her status. Saying they’ve left their job and now work at a company clearly specifying name and contact details. Unless the employee clearly breaches a post-termination contract and contacts clients directly to look for a job or offer a job, it’s hard to find evidence of solicitation.
What should employers do?
Employers should have a well-drafted employee contract and post-termination restrictions. This helps to prevent employees from soliciting clients or taking up a job offer from a direct competitor. However, these non-solicitation agreements typically don’t apply to social media. This is why, when drafting such clauses, employers should have a narrow and precise approach outlining the specifics of what a departing employee is allowed and not allowed to do when it comes to social media.
For instance, employers can ask employees to unlink all connections. The connections made from their personal social media that were made over the course of their employment. Also, the employer may allow the employee to update their employment status and state the new employer publicly. But prevent them from telling how good their new employer is.
Takeaway
To sum up, as an employer, you can require departing employees to delete all contacts and connections from their social media that were made during their employment. To make sure you have ownership of all data shared between your employees and clients. You should have a carefully drafted employment contract. This should include post-termination restrictions and social media policy. If you don’t have the proper restrictions in place, you could lose ownership of all social media contacts in case of ownership disputes.
If you need help drafting an employee contract that will protect you and your business in cases connected to solicitation and social media platforms, don’t hesitate to contact us. We offer virtual consultations via Zoom and would be happy to help and answer your questions.