LinkedIn communications at center of unprecedented lawsuit

Former employee broke non-compete agreement via her communications in LinkedIn, IT staffing firm says

In a first-of-its kind lawsuit, an IT staffing firm has accused one of its former employees of violating the terms of her non-compete agreements through her conduct on LinkedIn.

The lawsuit, filed in federal court in Minnesota by TEKsystems Inc., charges former employee Brelyn Hammernik of soliciting TEKSystems' employees and clients using LinkedIn.

The lawsuit alleges that after Hammernik left TEKsystems in Nov. 2009, she "communicated" with at least 20 TEKSystems contract employees and "connected" with about 16 of them using the LinkedIn professional network.

TEKsystems contends that Hammernik's actions were on behalf of her new employer and constituted a violation of the non-compete and non-solicitation contracts that she signed when joining TEKsystems as a recruiter in Jan. 2007.

The case could "have far-reaching implications for the law governing restrictive covenants in employment," Renee Jackson, a Boston-based labor and employment attorney with Nixon Peabody LLP, wrote in a blog post.

The lawsuit raises the interesting legal question of whether the mere act of connecting with other professionals on a social networking site constitute a violation of non-compete and non-solicitation contracts, Jackson wrote. "Does the mere existence of a network of professional contacts equal solicitation?" wrote Jackson, who declined to be interviewed for this story citing conflict issues.

It also raises the question of whether complying with a non-solicitation restriction would require individuals to disconnect and de-friend colleagues and customers of former employees until the restriction period expires, Jackson noted.

According to TEKsystems, its restrictive covenants specifically forbade Hammernik from contacting its employees for the purposes of recruiting them, for a period of 18 months after leaving the company.

TEKsystems names two other former employees, and Horizontal Integration, Inc. Hammernik's current employer in its lawsuit. The suit against Hammernik was filed in March, but the case has flown largely under the media radar so far.

The TEKsystems complaint lists a specific example of a LinkedIn communication where Hammernik appears to be inviting a employee of the firm to join her new company.

That one exchange could be seen as a clear violation of Hammernik's non-compete agreement, Jackson said. But even here it's unclear if she would have some wiggle room if Hammernik's contract did not specifically mention social media communications, she wrote.

"Does the medium matter, or just the message? Would such communication be treated the same as e-mail, or does 'social media' require its own standard?" Jackson wrote.

Rob Radcliff, an attorney with Gruber, Hurst, Johansen & Hail, who has represented IT recruiting firms in non-compete cases, said it's the first time where social media communications is being used as direct evidence of a non-compete violation.

Radcliff said Hammernik could have a hard time defending herself based on the LinkedIn communications that TEKsystems has highlighted in its complaint.

But what is unclear is how the company might have gotten its hands on the communications, and how many other examples the company might have of similar exchanges, Radcliff said. "In terms of the violation, the only evidence appears to be the LinkedIn communication," he said. "You got to wonder if the other communications were similar."

Typically, unless there is some "draconian provision", non-compete agreements should not prevent employees from using sites such as LinkedIn to remain in touch with other professionals and update contacts on their whereabouts, he said.

It's only when they use such sites to openly solicit that the could run into trouble, as happened in this case, he said.

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