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Non-solicitation agreement violated via LinkedIn

March 2012 - Employment. Legal Developments by AKD Prinsen Van Wijmen N.V.

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A non-solicitation agreement usually restricts the ability of an employee - after an employment contract has ended - to approach the clients of the former employer. The former employee of a software company recently discovered that the scope of such an agreement can also include contacts made via LinkedIn.

The facts
The employee had worked for nearly four years as Sales Director of a software company. On 31 March 2010, the employer and the employee decided to part ways by mutual consent. The settlement agreement included amongst other things the stipulation that the employee was not permitted to have direct or indirect contact with five clients who were specifically named. A fine of € 10,000 would then be imposed for each violation. On 27 August 2010, the provisional relief court sentenced the employee - after two earlier violations - to pay a fine of € 20,000.

The previously imposed fines did not stop the former employee submitting a quotation to a client of the former employer. Furthermore, the former employee had established a connection with a client via LinkedIn. When the employer saw on the personal LinkedIn profile of the former employee that he was 'connected' with the client, the employer quickly took a screenshot. In interlocutory proceedings, the employer once more demanded the payment of the fines. The defence of the former employee was that he was the only person who was able to issue a quotation at that time. The connection via LinkedIn was supposedly a 'dormant connection'.

Arnhem provisional relief court
The provisional relief court in Arnhem ruled that the sending of the quotation was a clear violation of the non-solicitation agreement. The fact that the former employee was the only person who was able to issue the quotation at that time was not relevant. In relation to the LinkedIn connection, the relief judge rejected the defence of the former employee. From the screenshot it could be ascertained that the connection had taken place during the term of the non-solicitation agreement. Because a LinkedIn connection was also covered by the broad scope of the non-solicitation agreement, this also constituted a violation. Furthermore, it made no difference for the relief judge whether or not the former employee had sent the invitation, or whether this had come from the client. The relief judge (once more) sentenced the former employee to pay € 20,000.

Commentary
This ruling makes it clear that former employees who are bound by a non-solicitation agreement should show restraint when using social media, such as Facebook, Hyves, and LinkedIn. The mere acceptance of a connection or a friendship request (with Hyves and Facebook) could already fall within the scope of (usually) broadly formulated non-solicitation agreements.

The scope of a non-solicitation agreement can even go beyond the acceptance of connection and friendship requests. It is not unusual for former employees, after they have stopped working for a company, to update their LinkedIn profile with the details of their new employer. The standard settings of LinkedIn then automatically notify all connections about this change of employer. It goes without saying that LinkedIn does not make a distinction between connections that are covered by a non-solicitation agreement and those which are not. In this way, it is not unimaginable that - although a client is not directly contacted by a former employee - a former employee can nonetheless be guilty of violating the non-solicitation agreement. It is therefore advisable for employers - in the event of a suspected violation of a non-solicitation agreement - to take a close look at the LinkedIn profile of the former employee.


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