Organizations and HR professionals can learn some lessons from a recent lawsuit that a Maryland-based employer filed, alleging that a former employee’s use of LinkedIn messages to its employees violated a noncompete agreement, according to one attorney.
The suit alleges that Brelyn Hammernick, formerly of TEKsystems, communicated with at least 20 of TEKsystems’ contract employees while in her job in recruitment and placement at Minnesota-based Horizontal Integration with the aim of recruiting TEKsystems employees.
The two companies compete in the same marketplace in the Minneapolis/St. Paul metropolitan area, according to the suit filed March 16, 2010, in the U.S. District Court for the District of Minnesota.
The suit names other former TEKsystems employees as violating the noncompete agreement—including Hammernick’s mentor—who left to join Horizontal Integration and allegedly recruited Hammernick from TEKsystems.
What is creating a buzz around this case, though, is the potential ramifications for LinkedIn, said Carolyn M. Plump, partner and chair of the labor and employment practice group for Philadelphia-based Mitts Milavec LLC.
The suit references LinkedIn messages Hammernick allegedly sent to TEKsystems employees, including one that asked if the LinkedIn message recipient was “still looking for opportunities” and invited him to visit her office “and hear about some of the stuff we are working on.”
While the TEKsystems suit is not unprecedented, as some have called it, it is “going to be a huge case with a lot of implications,” Plump said.
“Is this going to mean once people leave their company, if they are under some kind of noncompete [agreement], will they have to defriend or de-Link people? That could be quite a burden,” Plump told SHRM Online.
However, “I wouldn’t think a court would go so far to say if you were formerly Linked to people or friended people, you have to defriend/de-Link them,” she said. It would be unreasonable, she added, to stipulate that the person under the noncompete agreement “can’t reach out to people you weren’t formerly linked to.”
Plump, whose practice focuses on representing corporations in labor and employment matters, has warned about treading carefully when using LinkedIn. A July 7, 2009, National Law Journal article, for example, quoted her warning employers against posting glowing reviews of employees as it could be used against them in litigation.
The nuance of this case is that no mention of social media was made in this particular employment agreement, said Plump, who says that lawyers for the defendants will argue that the noncompete agreement did not forbid the use of social media explicitly.
“I don’t think employers should have to spell out every possible way an employee could solicit somebody, but I do think employers would be well [advised] to try to be comprehensive, to include social media in their policies and in their employment agreements,” Plump said.
“When you say you can’t compete … it shouldn’t matter whether you write it on a slip of paper or post it on a web site—solicitation is solicitation,” including using texting, Twitter and other forms of communication.
Advice to HR, Employers
Still, Plump advises HR professionals to update their organization’s policy and employment agreements to include mention of social media. She recommends that organizations:
*Designate a point person who communicates via social media on behalf of the employer as a way to monitor usage of those sites. It would be a good idea, she said, for the designated person to have Facebook and LinkedIn accounts.
*Annual training on new technology, which is changing rapidly. Training would serve as a reminder about not breaching confidentiality and about the company’s record of employee messages.
*Consistency in following the rules, including managers. Bending the rules for some employees can be problematic.
“LinkedIn can be a very useful tool for employees to make connections with people, with customers they may have,” Plump said. “I just think it has to be managed.”
Related Article:
Supreme Court Addresses Workplace Privacy in Texting Case, SHRM Legal Issues, April 23, 2010