Posting Your New Job Info on Facebook Is Not “Soliciting” Former Employer’s Customers

by Lee Gesmer on November 20, 2012

It’s not often that a Massachusetts Superior Court decision gets national attention, but if you search for Invidia, LLC, v. DiFonzo (Mass. Super. Ct. Oct. 22, 2012) you’ll see that legal blogs around the country have picked-up on this obscure case.

Why? Because anything that involves the intersection of law and social media gets attention.

In this case, the issue that attracted attention was whether a hairdresser employed by a beauty salon in Sudbury, Mass. “solicited” her former employer’s customers in violation of a noncompete/non-solicitation agreement. What did Ms. DiFonzo do to trigger this claim? She posted news of her job change on her Facebook page. The court held neither posting news of her new salon, nor friending several customers, constituted solicitation.

Professor Eric Goldman has a lot to say about this case, including his question of how widespread litigation in the hair salon industry improves social welfare. And, he quite rightly gloats over the fact that an agreement like Ms. DiFonzo’s would not be enforceable in California, which has prohibited employee non-competes by statute.

Not noted by most commentators outside of Massachusetts is the judge’s tentative conclusion that the customer “good will” this hair dresser developed with her customers may belong to her, not her salon. Most of Ms. DiFonzo’s customers seem to have been developed by her while working at the old salon, which makes this holding somewhat unusual. Goodwill is usually found to belong to employees who bring customers with them to their job (in which case, they are allowed to leave with them).

Salon owners across the state must be pulling our their hair in frustration over this aspect of the decision.

The former employer’s motion for preliminary injunction was denied on multiple grounds. According to my count, its hairdressers 2, salon owners 0 this year.

Invidia, LLC, v. DiFonzo (Mass. Super. Ct. Oct. 22, 2012)

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