The mere existence of cyberspace continues to influence and revolutionize areas of previously settled law. Most recently, TEKsystems, Inc. v. Hammernick, No 0:10-cv-0081, filed in the United States District Court for the District of Minnesota, could have far-reaching implications for restrictive covenants in employment law. In this case, a former TEKsystems, Inc., employee allegedly breached the non-solicitation provisions in her employment contract when she contacted a number of individuals through LinkedIn after her employment with TEKsystems ended.

TEKsystems, Inc. is an IT staffing firm that places individuals on a temporary or permanent basis in various companies throughout the United States. After Hammernick’s employment with TEKsystems ended, she went to work for another IT staffing firm, Horizontal Integration, Inc. and illegally communicated with at least twenty of TEKsystems’ clients and customers via LinkedIn on behalf of her new employer. LinkedIn is a social networking website used for business and professional purposes that boasts 70 million registered users worldwide. The lawsuit alleges Hammernick invited a TEKsystems employee to visit her new workplace to talk about possible employment opportunities.

Thus the question becomes whether an ex-employee’s use of her own social media account for business purposes violates an employer’s rights under a restrictive covenant prohibiting solicitation. If the alleged facts are true in this case, it seems clear that Hammernick breached her contractual obligation. However, because courts narrowly construe restrictive covenants, employers should address this issue by specifically referencing social media in such clauses to avoid any uncertainty about the applicability of social media. TEKsystems, Inc. v. Hammernick et al. is scheduled for trial by August 1, 2011.

Please read the articles listed below to learn more about this issue:

• Restrictive-covenant Federal Lawsuit Over Social Media Conduct Raises Novel, Far-Reaching Questions for Employers, by Renee M. Jackson
• Social Networking Sites Can Expose Weakness In Noncompete Agreements,  by Sarah L. Hinkle
• Social Media, the New World? by Russell Beck