Using LinkedIn could get you sued

Do you connect with your former co-workers on Facebook, LinkedIn, and Twitter? Of course you do -- everybody does. You move from job to job every few years, and your former co-workers are a valuable network for the next job lead. 

So it's perfectly ordinary for Brelyn Hammernik to have connected with her former colleagues on LinkedIn when she left her job as a recruiter for TEKsystems, a Maryland IT staffing firm. But TEKsystems sued her, charging she violated the noncompete provision of her employment contract by soliciting her former co-workers on LinkedIn.

The case, as reported by my colleague Jaikumar Vijayan, is not as simple as it first appears.

Turns out she didn't just connect with her former colleagues on LinkedIn -- she actively recruited them through that channel, TEKsystems alleges.

Attorney Renee Jackson, writing on the Nixon Peabody blog, posts the contents of one such message:

Tom—

Hey! Let me know if you are still looking for opportunities! I would love to have come visit my new office and hear about some of the stuff we are working on!

Let me know your thoughts!

Brelyn

Depending on how the judge rules, this case could have far-reaching implications for the professional use of social media.

If the judge decides that Hammernik violated her non-compete provision by simply connecting with her former colleagues on LinkedIn, that will be bad for every social media user. Social media is emerging as a primary channel for professional networking, and limitations on using it will make it harder for all of us to find the next job.

If, however, the case rides on messages like the one sent to "Tom," above, then it's really no big deal. That message appears to be clear-cut recruitment. The fact that it was sent on LinkedIn is irrelevant -- it would be recruitment if it was sent by e-mail, telephone, or smoke signals.

Jackson has legal advice for employers:

Employers should address these novel issues now -- and avoid any confusion about the applicability of social media -- by specifically referencing social media in any policy or agreement that attempts to restrict contact between employees, former employees, customers, and suppliers. Courts read such restrictive covenants very narrowly, so employers should reference explicitly contractor solicitation through social media in their policies and requirements.

Hammernik's defense further complicates the issue, writes ZDNet's Larry Dignan. She admits having LinkedIn connections to the people involved, but says they've never been TEKsystems employees. She names several people and said they initiated contact with her, and she then provided that information to TEKsystems. She admits to communicating with Tom Peterson, but says the communications didn't relate to staffing or soliciting IT business for her new employer. And she says that TEKsystems' and its employees' use of LinkedIn and Facebook for recruiting, promotional or other purposes voids any claim that information there is trade secret or confidential.

The case against Hammerik seems pretty damming -- but often evidence that seems clear-cut before a trial doesn't look that way when you get to the actual courtroom. I learned that through repeated viewings of My Cousin Vinny.

 

Mitch Wagner is a freelance technology journalist and social media strategist.