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
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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. Jordan Uditsky, an accomplished businessman and seasoned attorney, combines his experience as a legal counselor and successful entrepreneur to advise dentists and other business owners in the Chicago area. Jordan grew up in a dental family, with his father, grandfather, and sister each owning their own dental practices. This blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals.
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These self-appointed ADA compliance "testers" have filed thousands of nuisance ADA suits that have cost American businesses millions of dollars. According to one analysis, ADA lawsuits have increased by 320% since 2013, with over 4,000 suits filed in 2024 alone. Many plaintiff's law firms file hundreds of cookie-cutter ADA lawsuits each year. One person can visit multiple businesses or websites in a single day solely to identify even the slightest accessibility transgressions in order to generate claims. While these suits can focus on any number of alleged ADA shortcomings, those relating to website accessibility (discussed in detail in this earlier post ) filed by a handful of law firms and serial plaintiffs have earned the scorn of small businesses and practices across the country. That's because these "testers" and the lawyers who represent them specifically target small businesses, as they typically have limited means to defend themselves, may not be able to discern between legitimate and bogus claims, and often see a quick payoff as the path of least resistance. Here’s how the shakedown typically goes down: A plaintiff or their attorney sends the practice a demand letter in which they claim that the practice’s website is inaccessible to people with disabilities (e.g., missing image alt text, inaccessible forms, incompatible with screen readers). They cite a violation of Title III of the ADA. They make a demand for a cash settlement, often ranging from $2,500 to $25,000, alongside a request for accessibility fixes. The business/practice cuts a check in exchange for a release of any ADA claims by that plaintiff related to the website. The business/practice may then receive more demand letters, often from the same firm, on behalf of other plaintiffs who make the same claim, and the extortion continues. Don’t Act Impulsively – Do This Instead All this is not to say that dental practice owners should consider all such claims and demands to be frivolous or ignore their ADA obligations relating to their website. To be sure, a meritorious ADA lawsuit can indeed expose a practice to significant financial and reputational damage. Before reflexively giving in to an ADA demand letter and settling a supposed claim, practice owners should take the following steps: · Don't Panic, But Don't Ignore It. As noted, a demand letter with legalese and ominous language doesn’t mean that you’ve done anything wrong or actually violated the law. While your immediate reaction may include fear, confusion, or anger, don’t act impulsively. 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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. Jordan Uditsky, an accomplished businessman and seasoned attorney, combines his experience as a legal counselor and successful entrepreneur to advise dentists and other business owners in the Chicago area. Jordan grew up in a dental family, with his father, grandfather, and sister each owning their own dental practices. This blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals.
