Earlier this year, a Minnesota federal district court case received national attention because it involved what is believed to be the first claim that former employees’ use of LinkedIn to contact (and arguably solicit) their former coworkers violated non-competition, non-solicitation, and non-disclosure agreements. The case is TEKsystems, Inc. v. Hammernick, et al. (A copy of the Complaint is linked below.) It presents the novel issue of whether communications through LinkedIn are sufficient contact to violate restrictive covenants in employment agreements.
In this case, TEKsystems sued Hammernick and two other former employees of TEKsystems (the “defendants”) for violating non-competition, non-solicitation, and non-disclosure agreements contained in the defendants’ employment contracts with TEKsystems. Specifically, TEKsystems claimed that defendants’ violations included using LinkedIn to connect with employees of TEKsystems. These communications allegedly involved the defendants adding TEKsystems’ employees as “contacts” in LinkedIn, and seeking to communicate with some TEKsystems employees by sending messages through LinkedIn.
Because the TEKsystems case just ended on October 1 pursuant to a confidential settlement, the court did not reach a decision on whether the plaintiff’s claims about LinkedIn had merit. Although the settlement terms are confidential, the defendants were clearly concerned about their exposure in the case because the docket shows that they have agreed to a stipulation (see link below) that precludes them from contacting their former co-workers and customers for an entire year, as well as requiring a forensic computer specialist to check the defendants’ computers to ensure that they have deleted all documents that they took with them when they left their employment for TEKsystems—clearly not a “win” for the defendants.
Although the court did not provide any guidance about TEKsystems’ novel LinkedIn claims, this case demonstrates that such claims are real enough to stick and to cause a settlement favorable to the suing former employer. Consequently, employers and other businesses should consider the use of LinkedIn, Facebook, and other social media to communicate with employees and customers, when drafting employment agreements, employee handbooks, and buy/sell agreements. Given the potential harm that can come from improper social media interaction, employers and businesses should state expressly in these documents that prohibited communications include contacts through social media sites. That way, in the event of a problem, there will be no doubt in court that even connections via social media sites constitute prohibited communication according to an agreement or policy.