Forbidden Friending: A Framework for Assessing the Reasonableness of Nonsolicitation Agreements and Determining What Constitutes a Breach on Social Media

By Erin Brendel Mathews

Social media has changed the way people conduct their day-to-day lives, both socially and professionally. Prior to the proliferation of social media, it was easier for people to keep their work lives and social lives separate if they so wished. What social media has caused people to do in recent years is to blend their personal and professional personas into one. People can choose to fill their LinkedIn connections with both their clients and their college classmates, they can be Facebook friends with their coworkers right along with their neighbors, and they can utilize social media sites to market themselves or their businesses to a wide audience. Finding a job, filling a position, or building a customer base has never been easier.

What lurks behind the convenience of combining these worlds into one online persona is the potential to violate certain restrictive covenants that bind many employees beyond the end of an employment relationship. Nonsolicitation agreements have become a popular choice for employers who wish to restrict their former employees from soliciting their former clients or coworkers, as these agreements are less restrictive and more likely to be upheld in court than noncompetition clauses. What has come up in recent litigation over these agreements is their enforceability with respect to social media activity and what exactly constitutes a solicitation via social media. This Note proposes a flexible standard for assessing the reasonableness and enforceability of nonsolicitation agreements that aim to
cover employees’ social media activity.