By G. A. Finch
A fellow alumnus, Gene Killian, recently started a discussion in the LinkedIn University of Michigan Law School Group with the query: LinkedIn Use Violates Restrictive Covenants?
Mr. Killian alerted the group to a recent complaint filed in the U.S. District Court for the District of Minnesota captioned TEKsystems Inc. v. Brelyn Hammernick, et al.
Allegations
Plaintiff TEKsystems Inc. is in the business of recruitment and placement of temporary and permanent employees. Defendant was a former employee of the Plaintiff and had signed an employment agreement which contained provisions not to compete, not to solicit, and not to divulge confidential information. Defendant went to work for a purported competitor of Plaintiff.
Plaintiff alleges Defendant violated the non-solicitation and non-compete provisions by soliciting Plaintiff’s contract employees and clients within the restricted geographic area covered by the employment agreement. Specifically, the complaint alleges Defendant “communicated with at least 20 of TEKsystem’s Contract Employees using such electronic networking systems as LinkedIn.” The complaint went on to allege that Defendant connected with several named employees of Plaintiff. Plaintiff further alleges that Defendant specifically asked an employee whether he was still looking for opportunities and alleges that Defendant stated that she would love to have the employee come by her new offices and hear about the stuff she was working on.
These allegations are just allegations and, of course, Plaintiff will have to prove its case.
Social Media Bumping Up Against Employment Contract Provisions
What I find interesting is the intersection of social media and employment contracts. We talk a lot about both of these subjects in this blog. Now we see how one can affect the other.
People have gotten way too comfortable with social media like Facebook and LinkedIn. We forget 1) that what is sent into the internet never really goes away and 2) that it can be conceivably be read by thousands, if not millions of individuals. Most disturbingly, much of it can be used in a court of law as evidence against you.
We don’t know what Defendant’s response and defense will be so we can’t speculate how a fact finder (judge or jury) might decide this case.
Medium Doesn’t Change Underlying Elements of a Cause of Action and Use of Carve Outs
I do have a couple of observations:
A) The medium or means of communication may vary (e.g., telephone or email), but improper communication is improper communication. You can’t solicit a customer or former employer if you have signed a valid non-solicitation provision.
B) If you already have pre-existing relationships with employees, customers, clients, potential customers and potential clients, then be sure to list those in a carve out provision before you sign non-solicitation, non-compete and confidentiality agreements. There may be overlap between your existing contacts and your prospective employer’s contacts and you don’t want to be precluded from utilizing them post-employment.
The TEKsystems Inc. case is instructive in that we should not be lulled by the false sense of intimacy and instant camaraderie of social media like LinkedIn and Facebook. Our communications, whether on the internet or face to face, can have unanticipated legal consequences.
Your Executive Life Blog 
I agree with your final observation – this is really a question of medium. Communicating through LinkedIn is really just the same as sending an email. I haven’t read the case, but I wonder if it would be different if the type of communication wasn’t so cut and dry. For instance, what if the communication was through a group that the defendant shared with former clients? What if the defendant posted something as an update on LinkedIn that had the effect of luring former clients. In my opinion, these types of communication that are more passive are the ones that will create the sticking points in the future.
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Social online internet sites have certainly provided rejuvenating life to existing communities that have become distant for many different reasons. While connecting and reconnecting with new and old friends and colleagues on the internet, one should feel free to express feelings and other emotions freely – right?
With all the precautions pitched from all angles of society about what should or should not be said on the internet, are we relinquishing our United States of America freedom of speech rights? I wonder do they even apply to communication exchanges on the internet.
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Merilet,
Thanks for your observations and questions. Social media are peculiar things. They are wonderful – kind of like fire. Harnessed correctly they can do many things for us. Mishandled and they can do great harm as fire can. Some commentators liken LinkedIn and Facebook to be large cocktail parties where you mix, mingle, socialize and exchange information. I like this analogy very much because what one would not say at a cocktail party is pretty much what one shouldn’t say online. One shouldn’t call one’s investment advisor a thief either at a cocktail party or on LinkedIn. One shouldn’t make inappropriate risque comments to a co-worker of the opposite gender either at a cocktail party or on LinkedIn. One shouldn’t divulge business secrets either at a cocktail party or on LinkedIn. What makes social media more dangerous than a cocktail party is that one may have created a permanent digital record of one’s ill considered statement.
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