Could Your Social Networking Activity Be Violating Your Employment Agreement?

The question raised in a recent lawsuit involving a former employee’s use of LinkedIn delves into uncharted legal territory: does the mere act of connecting with other professionals on a social networking site constitute a violation of non-compete and non-solicitation agreements?

After leaving her position at an IT staffing firm, a former employee of a recruiting company has been accused of violating the terms of the noncompete clause included in her original employment agreement by her conduct on the professional networking site LinkedIn. In a lawsuit filed in Minnesota this week by TEKsystems Inc., Brelyn Hammernik was charged with soliciting her former company’s clients using LinkedIn.

Now the court must decide whether merely connecting with other professionals on LinkedIn constitutes a violation of non-compete and non-solicitation agreements that are often conditions of employment. If so, could individuals be expected to alter their contacts on social networking sites to remove connections with clients and colleagues of former employers every time they change jobs? Does mere connection through a networking site imply solicitation in violation of a noncompete agreement? TEKsystems, Inc. v. Hammernik et al. is the first case to ever raise these issues about these issues in court, which is interesting since such restrictive covenants (legalese for agreements not to compete) are pretty much standard in employment agreements.

Although it will be a while until we know the answer to these questions, this case highlights the fact that law and technology are just starting off on a rocky road to coexistence. Social media and online networking pose novel issues that earlier generations simply could not foresee. Companies using standard form employment contracts originally drafted years ago should contemplate updating them to match this new reality. They must think about how their employees should be allowed to use sites like LinkedIn and even Facebook in connection with their employment so that when the employee and the employer part ways the rules are clear cut. The outcome of this case will no doubt set a precedent for the future of this tricky situation.

Join Baratunde Thurston (left), The Onion’s Director of Digital and author of How to Be Black, for an entertaining look at creative social media campaigns in our Social Media Marketing Boot Camp starting February 16. Other speakers include Morin Oluwole (Facebook), Tim Devane (bitly), and SocialTimes' writer Devon Glenn.   Register now.