June 15, 2010, 10:03 PM — 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.