Unlawful Solicitation?

Computerworld reports on an intriguing US employment law case, in which an IT firm has accused a former employee of breaching a non-competition agreement.

The lawsuit, filed in federal court in Minnesota, US, by TEKsystems, charges former employee Brelyn Hammernik of soliciting TEKSystems' employees and clients using LinkedIn.

The lawsuit alleges that after Hammernik left TEKsystems in November 2009, she "communicated" with at least 20 TEKSystems contract employees and "connected" with about 16 of them using the LinkedIn professional network.

TEKsystems contends that Hammernik's actions were on behalf of her new employer and constituted a violation of the non-compete and non-solicitation contracts, which she signed when joining TEKsystems as a recruiter in January 2007.

Non-compete and non-solicitation provisions are commonplace in employment contracts, especially where employees are engaged in sales roles. These clauses are designed to ensure that when an employee leaves a job they do not simply contact all of the clients of the former employer and solicit their work. Under New Zealand law a restraint of trade such as a non-solicitation clause will only be enforceable if it is reasonable. Generally, it will not be reasonable to stop an employee from plying their trade, but it is generally reasonable to prevent direct solicitation of the former employer's clients for a specific period of time after ceasing employment.

The intriguing thing about the US case is the involvement of social media. Many professionals (such as myself) use LinkedIn, and it is easy to send a messages out to your “connections” (In case you haven’t used LinkedIn, it’s quite similar to Facebook in many ways. LinkedIn “connections” are like Facebook “friends”), or to contact people on LinkedIn you want to connect to. And the other thing you can do to alert people of your changed circumstances is update your profile.

There are other, more subtle ways, to use LinkedIn. Like Facebook it will alert you to people who are linked to you via others. So you could, for example, focus on creating connections with people who you know or suspect are connected to your targets, in the hope that those you’re targeting are encouraged to click through to your profile when they are notified of a link. Would this activity amount to a “solicitation”?

And what about the problem with Twitter? If you tweet regularly about your everyday activities and some of your old employer’s clients just happen to be followers, would a tweet such as “first day at new job, going great” be enough to get you in trouble? Some people will tweet anything, and it’s possible someone might be able to argue that such a tweet wasn’t a solicitation.

There will be employment law cases in this country involving social media – eventually. It’s a fascinating area of law, and the constantly changing technology and evolution of social media are going to create ongoing challenges for those who draft non-solicitation and restraint of trade clauses. How specific would a clause need to be about the ability of a former employee to use social media to connect to others, or to communicate their changed circumstances? Would a requirement to actively disconnect on social media with all clients of the employer be regarded by a court as reasonable?

I should make it very clear that am not an employment lawyer, so don’t go doing sneaky things on social media and then tell the judge I said it was okay.