In this depressed economy, social media is one of the primary tools used for job-related networking. At the risk of blaspheming, I greatly prefer LinkedIn to Facebook because of the professionalism and relatively serious mindset of the user base (you don’t see much of “Hey, I’m lying on the couch!” from the VP’s and SVP’s on LinkedIn). However, a suit filed this March in federal district court in Minnesota demonstrates the risks of casual chatter through LinkedIn when there is an employee non-compete agreement in the picture.
The facts of the case are very simple. Brelyn Hammernick was a Minneapolis technical recruiter for the IT services firm TEKsystems who left to take a job with their competitor Horizontal Integrations. Ms. Hammernick used LinkedIn’s e-mail tool to communicate with her network, which included several current TEKsystems employees. Ms. Hammernick had signed a non-compete agreement with TEKsystems containing standard non-solicitation language that prohibited her from communicating with company employees to induce them to leave TEKsystems or work for a competitor. Yet, as several attorney bloggers have already commented, certain of Ms. Hammernick’s e-mails were clearly solicitations. The relevant paragraph from TEKsystems’ complaint alleges:
“Hammernick is soliciting TEKsystems’ Contract Employees and clients in the geographic area encompassed by the non-competition and non-solicitation provisions of the Hammernick Agreement. For example, Hammernick has communicated with at least 20 of TEKsystems’ Contract Employees using such electronic networking systems as “Linkedin.” Hammernick has, at a minimum, “connected” with the following TEKsystems’ employees through “Linkedin: Harold Osmundson, Steve Wicks, Kazim Merchant, Shawn Faber, Srujana Pasunuri, Shailaja Garishakurti, Kevin Jordahl, Mitha KC, Carl Boudreau, Tom Peterson, Seann Van Cleve, Bob Hasselman, Marcia Diterich, Bill Severson, Claude Wallander, and Brett Snaza. In her contacts with Tom Peterson, Hammernick asked Peterson if he was “still looking for opportunities.” She then stated that she ‘would love to have [you] come visit my new office and hear about some of the stuff we are working on.’”
You can also find a full reprint of the key e-mails, along with some trenchant commentary, on Dallas attorney Rob Radcliff’s blog here. (I don’t normally cite other law firms’ blogs, but I consider Mr. Radcliff’s post both informative and dead-on.)
What are the take-aways here?
1. No one seriously believes that the federal district court is going to treat LinkedIn communications as qualitatively different from traditional channels of solicitation, such as telephone calls, e-mails outside of the social media context, or in-person conversations. Doing something dumb on Web 2.0 is the same as doing something dumb on Web 1.0, which in turn is the same as doing something dumb using a telephone, telegraph or smoke signals.
2. As Mr. Radcliff notes in his blog, employers may find social media posts and communications of departed employees to be a font of useful evidence in employment-related litigation. Employers should also consider mentioning social media posts and communications as a specific example in employee agreements and materials prohibiting solicitation and other objectionable activities.
3. The TEKsystems case involves deliberate one-to-one communications through LinkedIn. A salient question, however, is whether posts or updates to one’s entire network or chosen group can violate non-solicitation obligations if the content is objectionable and certain recipients are still employees of the sender’s late, unlamented employer. Or, to put it differently, if you’ve signed a non-compete with non-solicit requirements, should you “un-friend” or “de-link” your former work colleagues? Simply updating your career profile should not be a problem, but you may want to think twice before blitzing your network or friends about all of the terrific opportunities you’re getting at your new employer.
4. Careless chatter on social media is a problem not only for departing employees, but also for their new employers, who (like Horizon Integrations in the TEKsystems case) may get named in the lawsuit if the objectionable behavior appears to work for their benefit.
Legally speaking, social media is no different from other forms of communication. However, just as e-mail did in the 1990’s, it has a tendency to invite informal, spontaneous and poorly considered actions from its users. Given the uncertain state of privacy on Facebook and other popular social media sites, expect to see a mountain of social media evidence building up in future litigation.