Can I be held responsible for a former colleague joining me at my new company ifI did not directly solicit him?

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Can I be held responsible for a former colleague joining me at my new company ifI did not directly solicit him?

When I began employment with my previous employer I signed an agreement that stated I would not solicit any of their employees or clients for 1 year after I left their employment. I recently (within 1 year of leaving) posted a message on Facebook looking for a candidate at my new job and 1 of my former colleagues applied and was hired. My former employer is now demanding that I agree to not contact any of their current employees at all until 10/11/11. Did I violate the agreement just because someone I used to work with is joining my current company even if I didn’t solicit him?

Asked on December 9, 2010 under Employment Labor Law, Arizona

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Was it on your facebook page that only went out to your friends or was it an ad that you placed on facebook the general facebook?   Those you pay per click.  All these social networking sites leave much for the courts to muddle through on legalities.  The internet challenges old principles of law - for the good, I am sure - but sometimes for the first time.  I think that there are too many factors here that will play in to the answer and that they need to be discussed with an attorney in your area.  In my opinion, if you placed the "ad" to only your facebook friends who were also employees of your previous employer you could have breached the agreement.  I would also argue that the ad did not target anyone specifically and that it was sent to all your thousands of facebook friends as the devil's advocate.  But sign nothing and do not speak with your employer until you have the matter resolved.  Good luck.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

There  is little case law on this subject--the interplay of social media and nonsolicitation agreements. At one extreme, a phone call or email directly to a former colleague about an opening would clearly be solicitation. At the other extreme, a newspaper, Monster, or Craigslist add about an opening, visible to the whole world, would not be solicitation. In between in Facebook: even if you did not aim it directly at this person, only your friends could view what you posted and if a subset of your friends are former colleages, it *might* be soliciation, since it might be directed "enough." You should not post anything about your new business in any forum where former colleagues can see it and probably should minimize contact with them and also keep that contact demonstrably not about work and "offline." Among other things, while you have a nonsolicitation in force, it might be best to not network with them--the line between networking and solicitation, if any do take job action based on the contact, is very thin.


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