Posting of Job Advertisement on LinkedIn Did not Breach Non-Solicitation Agreement

The Indiana Court of Appeals held that a company’s posting of a job advertisement in a user group space of the LinkedIn business networking website did not constitute solicitation or inducement of another company’s employee in violation of a non-solicitation provision in an agreement between the companies. Enhanced Network Solutions v. Hypersonic Technologies Corp., No. 02A03-1011-PL-609 (Ind. Ct. App. Jun. 30, 2011). As explained by the court, Enhanced Network Solutions Group, Inc. (“ENS”), a company that modifies existing software, entered into an agreement with Hypersonic Technologies Corporation, pursuant to which Hypersonic would serve as a subcontractor to ENS on certain joint projects. The agreement contained the following provision:

During the term of this Agreement and for a period of twelve (12) months from the date of effective date of its termination, unless mutually agreed to in writing otherwise the Parties … shall refrain from soliciting or inducing, or attempting to solicit or induce, any employee of the other Party in any manner that may reasonably be expected to bring about the termination of said employee toward that end….

Hypersonic subsequently posted an advertisement for an open position for an outside sales representative on its LinkedIn webportal. Robert Dobson, a field representative for ENS, noticed the job posting and applied for the job. He met with Hypersonic’s representatives twice and told them what he was currently being paid and what he was looking for in a new position. Hypersonic offered Dobson a job, and Dobson accepted the offer. Hypersonic then filed an action seeking a declaratory judgment that its hiring of Dobson did not violate the non-solicitation provision in its contract with ENS. ENS counterclaimed against Hypersonic for breach of the clause. The trial court found that “Hypersonic did not solicit, induce, or attempt to solicit or induce Dobson to terminate his employment with ENS.” ENS appealed.

The Indiana Court of Appeals affirmed the trial court’s judgment. The court observed that the parties’ agreement contained no definition of the terms “solicit” and “induce.” The court looked to Black’s Law Dictionary and found “solicitation” defined as “[t]he act or an instance of requesting or seeking to obtain something; a request or petition.” Inducement was defined as “[t]he act or process of enticing or persuading another person to take a certain course of action.” Based upon these definitions, the court found no error in the trial court’s conclusion that Hypersonic had not solicited or induced Dobson to quit his job at ENS. The court emphasized that–

all major steps were initiated and taken by Dobson: he commenced the conversations about the position and he conveyed his terms of employment to Hypersonic. Hypersonic merely followed where Dobson led. Therefore, we conclude that Hypersonic did not breach the non-solicitation clause of the Agreement

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