Can a Dentist’s Social Media Posts Breach a Non-Solicitation Agreement “IRL”?
Jordan Uditsky • December 16, 2019
I don’t think it’s a stretch to presume that if you are a dentist or member of a dental practice, you have some kind of social media presence. Sure, it may be a Facebook or LinkedIn page that has been gathering dust since you first set it up years ago. For many dentists, however, active social media participation is a vital part of developing their practices, attracting new patients, and promoting awareness of their services and credentials.
But if you have moved on to a different practice or opened your own and are bound by the terms of a non-solicitation agreement, your online posting, friending, and connecting can raise some tricky issues “IRL” (“in real life,” as the kids say).
Non-solicitation agreements limit an employee’s ability to actively seek the business of the employer’s current patients/clients/customers for a given period, though they are free to set up shop and do business. Recently, courts here in Illinois and across the country have started to weigh in on whether and what kind of social media activity can constitute solicitation in violation of a general non-solicitation provision that does not specifically address social media use.
Generic and General vs. Specific and Targeted
The common thread in the developing case law is one which distinguishes between two types of social media activity:
- generalized social media engagement, such as LinkedIn or Facebook pages and posts, as well as friend or connection requests that do not substantively encourage recipients to become patient, customers, or employees
- posts and friend or connection requests targeted to specific people or groups and/or clearly focusing on attracting patients, clients, and employees to the business or practice
While every case presents specific facts and circumstances that will play a role in a court’s analysis, the former category of social media use is likely to be okay, while the latter may expose dentists to liability for breach of their non-solicitation agreement.
A 2017 decision by the Illinois Appellate Court contains a robust discussion about the topic and how courts in other jurisdictions have ruled.
In Bankers Life & Cas. Co. v. Am. Senior Benefits LLC, a former employee of the plaintiff moved to a new job and sent generic LinkedIn connection requests to three of his former colleagues who were still employed at Bankers Life. While the requests themselves contained nothing of substance, if those colleagues accepted the invitations and looked at the employee’s profile page, they would see a job opening posted by his new employer. The plaintiff claimed that this constituted solicitation of employees in violation of the former employee’s agreement.
The court rejected the plaintiff’s claims and held that a generic connection request to those employees, without more, does not constitute solicitation because “the next steps, whether to click on [plaintiff’s] profile or to access a job posting on [plaintiff’s] LinkedIn page, were all actions for which [plaintiff] could not be held responsible.”
Look at the Substance
In arriving at its decision, the court noted other cases involving similar and distinguishable fact patterns, all of which provide a good idea of where courts will draw the line between acceptable social media use and prohibited solicitation. Though these decisions do not bind Illinois judges, courts in other jurisdictions have found the following to not be violations of non-solicitation covenants:
- a web designer updates his LinkedIn page to reflect his new job and adds a post encouraging his contacts to “check out” a recent project he worked on.
- becoming friends with former clients on Facebook.
- posting a job opportunity on LinkedIn (as opposed to sending it to specific employees).
- employee's postings on Facebook touting his new employer's product and which was viewed by former colleagues did not violate agreement to not recruit employees from his former employer.
In contrast to these examples, the court also cited a federal case from Michigan
in which a former employee published a blog and other posts on Facebook post urging his former co-workers to leave his former employer by stating, "If you knew what I knew, you would do what I do."
Finding in favor of the employer, that court noted that “it is the substance of the message conveyed, and not the medium through which it is transmitted, that determines whether a communication qualifies as a solicitation… Communications qualifying as solicitations do not lose this character simply by virtue of being posted on the Internet."
For dentists who move on to greener pastures while bound by a non-solicitation agreement, it is the “substance” of their subsequent social media activity that they need to carefully consider before clicking “Enter.”
Though each situation must be evaluated on its own set of facts and circumstances, connection and friend requests to former patients may be acceptable provided such requests do not tout their new practice or otherwise encourage those patients to switch dentists. Similarly, social media posts and pages visible to the general public that promote a dentist’s new practice should avoid being specifically directed to former patients or risk violating a non-solicitation.
Again, every contract and every social media post is different. If you are a dentist or practice that has concerns about whether your social media activity or that of a former colleague may raise issues with existing contractual limitations, you should discuss your concerns with an attorney experienced with dental non-solicitation agreements.
Grogan Hesse & Uditsky: Serving Chicagoland’s Dental Professionals
At Grogan Hesse & Uditsky, P.C., we focus a substantial part of our practice on providing exceptional legal services for dentists and dental practices, as well as orthodontists, periodontists, endodontists, pediatric dentists, and oral surgeons. We bring unique insights and deep commitment to protecting the interests of dental professionals and their practices and welcome the opportunity to work with you.
Please call us at (630) 833-5533 or contact us
online to arrange for your free initial consultation.
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Best Practices For Terminating a Patient Relationship As noted, adequate notice, providing the patient an opportunity to find alternative care, and facilitating continuity of ongoing care are the keys to responsibly ending the dentist-patient relationship and avoiding a claim of abandonment. We suggest that dentists take the following steps to minimize the likelihood of any disputes or claims arising from the termination of the relationship: provide written notice to the patient, preferably by certified mail; provide the patient with the reasons for terminating the relationship; offer to continue treatment and access to services for a reasonable period (such as 30 days) to allow the patient to secure another dentist’s services; state that you will provide emergency services for a designated period; help the patient locate another dentist; and offer to transfer the patient’s records to a new dentist and/or advise the patient of their right to obtain a copy of their records for a fee. 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Most relationships, whether personal or professional, start with a certain level of mutual trust and respect, compatibility, and shared goals and priorities. But those characteristics don’t always last, and a once-promising partnership can devolve into disputes, distrust, or outright hostility. The dentist-patient relationship is not immune to such deterioration. There may come a day when the differences between a dentist and their patient make continued treatment undesirable or impractical. A patient, of course, is free to call it quits with their dentist at any time, or the patient and dentist can mutually agree to part ways. But when a dentist wants to stop treating a problematic or disruptive patient and terminate the relationship, things can be a bit stickier. 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Accordingly, a dentist may not end a patient relationship because of the patient’s race, religion, gender, color, age, national origin, disability, or other characteristics protected by federal and state anti-discrimination laws. Notably, political opinions are not a protected characteristic under the law. Common reasons a dentist may justifiably terminate a patient include: Hostility or abusive behavior toward the dentist, staff, or other patients Harassment or sexual abuse of dentist, staff, or other patients Repeatedly missing appointments Refusal to undergo recommended testing or treatment Lack of trust or confidence in the dentist’s abilities or recommendations Consistent failure to follow office policies Showing up to appointments under the influence of alcohol or drugs Refusing to adhere to infection-control precautions and policies, such as masking Nonpayment Patient Dismissal vs. Patient Abandonment A dentist who chooses to dismiss a patient can’t simply show them the door, send them a break-up text, or refuse to answer their calls. Dentists must end the relationship such that they avoid any claim that they have abandoned their patient. According to the ADA’s Principles of Ethics and Code of Professional Conduct Section 2.F.: Once a dentist has undertaken a course of treatment, the dentist should not discontinue that treatment without giving the patient adequate notice and the opportunity to obtain the services of another dentist. Care should be taken that the patient’s oral health is not jeopardized in the process. Patient abandonment is a serious ethical violation. For example, the Illinois Dental Practice Act lists “abandonment of a patient” as one of the many reasons the Illinois Department of Financial and Professional Regulation may revoke, suspend, refuse to issue or renew, reprimand, or take other disciplinary or non-disciplinary action against a dentist. A dentist also exposes themself to a malpractice claim if injuries result from their termination of the patient at the wrong time during the course of treatment or without proper notice. 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