FACEBOOK, LINKEDIN, AND SOCIAL MEDIA

Lets say your employer wants to take full advantage of the available “social media” to make sure as many people as possible know about his company and his products and services. He suggests (or even directs) that you “link” and “friend” not only your current customers and clients but also those targets which are potential customers and clients. A good business decision, right?

Maybe but maybe not. What if you leave your employer to work for a competitor. Of course, your new employer wants to take full advantage of your reputation and experience and directs you to start contacting those customers/clients to whom you “linked” or “friended” at your previous employer. You make those contacts and BAM….you get a “cease and desist” letter from your previous employer asserting that your contact of previous customers/clients violates the previous employer’s Trade Secrets (i.e. customer lists).

Doesn’t seem fair does it? At least one court in New York agrees.

In Sasqua Group, Inc. v. Courtney, Slip Opinion, 2010 WL 3702468, E. D. N.Y., September 7, 2010, trade secret protection for a customer list was denied after an employee left a financial services professional recruiter to start her own business. The court correctly reasoned the same information was available and easily attainable through social media sites such as LinkedIn, Facebook, and Bloomberg.

My Take: The previous employer cannot have it both ways. If an employer encourages its employees to use social media sites for maintaining connections to existing clients and customers as well as to find new business, it cannot credibly argue that a departing employee is violating its “trade secret” customer list when the employee continues to contact those customers and clients via social media for her new employer.

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Dan Frith

Dan Frith has over 25 years of experience representing individuals and families in cases of medical malpractice throughout Virginia. He has been named "Best Medical Malpractice Attorney" by Roanoker Magazine and is a member of the Million Dollar Advocates Forum. To speak with Dan, contact him by email at dfrith@frithlawfirm.com.