Employer Does Not “Like” Court Decision: Facebook Postings About New Job Not A Breach of Non-Solicitation Clause

Randi Klein Hyatt
Randi Klein Hyatt
11/29/2012

Bristled that its clients interacted with a former employee on Facebook, a Massachusetts hair salon sought a preliminary injunction to cut short the stylist’s attempts to work at a competing salon and to force her to surrender the salon’s confidential information.  All puns aside, the Superior Court of Massachusetts recently ruled that certain Facebook postings were not a violation of the non-competition clauses in place.  Invidia, LLC v. DiFonzo, No. 121326 (Mass. Super. Ct. Oct. 19, 2012).

As a novice stylist, DiFonzo signed a Covenant Not to Compete, Non-Solicitation, and Confidentiality Agreement at the start of her employment with Invidia salon, agreeing that she would not tame tresses within ten miles of the salon for two years.  DiFonzo also agreed that she would not solicit any of the salon’s clients or customers.  Two years later, DiFonzo resigned from Invidia and started working for another salon located just less than two miles away.  After DiFonzo left, ninety (90) of Invidia’s clients cancelled, missed, or failed to schedule appointments.

In the context of non-compete, non-solicitation, and confidentiality agreements typically found in employment relationships, Invidia is a noteworthy decision, given the court’s comments on social media.  Prior to beginning her new job, DiFonzo’s new employer announced her employment on her Facebook page.  In response, an Invidia client commented, “See you tomorrow Maren!,” meanwhile cancelling her appointment at Invidia for the next day.  The court did not consider these Facebook postings to constitute “solicitation” of Invidia’s clients, in the absence of any evidence that DiFonzo directly contacted clients about her job at the new salon.  Invidia also argued a violation because DiFonzo was “Facebook friends” with several Invidia clients.  The Court was not moved, saying “one can be Facebook friends with others without soliciting those friends to change hair salons.”

In the interest of protecting its business relationships, Invidia declined to contact its former and current clientele to inquire as to whether DiFonzo solicited their business.  The Court viewed the salon’s failure as undermining its own attempts of securing a preliminary injunction against DiFonzo.

While the employer in Invidia was unsuccessful in securing a preliminary injunction against its former employee, comprehensive electronic discovery encompassing social media could be helpful to other employers faced with similar employment issues.

By Susan K. Lee Bathgate

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