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How LinkedIn usage could be illegal

LinkedIn is a business networking tool, especially popular with people who use it to connect with ex-colleagues. However, a test case in the US suggests many people could be breaking the law, if they use it in breach of non-compete contracts.

On March 16, 2010, IT staffing company TEKsystems sued, in Minnesota, three of its former employees and their new employer, Horizontal Integration, over alleged violations of their non-competition, non-solicitation and non-disclosure agreements. One of the three, Brelyn Hammernick, worked for TEKsystems and signed an agreement that forbade her from communicating with or soliciting employees or contractors of TEKsystems. When she went to work for Horizontal Integration, the lawsuit alleged, she connected with “at least 20” contract employees of TEKsystems using LinkedIn.

On its blog post about the story, law firm Nixon Peabody says, “This case raises the novel legal question whether merely connecting with professional contacts via professional networking websites constitutes a violation of a restrictive covenant prohibiting such solicitation or contact. Does the mere existence of a network of professional contacts equal solicitation?”

The implication for LinkedIn and other business networks is not black and white because it could be the intent that is more important than the medium. For example, it cannot surely be considered a crime to have people on your contacts list, but perhaps it would be wrong to offer them some kind of inducement that would be considered a breach of your agreement.

Part of the evidence in the aforementioned case includes communication between Hammernick and a TEKsystems contractor, Tom, in which Hammernick invites Tom to her new office. Clearly it would not be wrong for ex-colleagues to socialise – no restrictive covenant can forbid all contact. However, it would be fair to assume from the communication that the intent was not just friendly socialising – it was to present business opportunities.

In all likelihood, nothing about the case is likely to change the nature of people being able to use LinkedIn, but it should perhaps alert people to the fact that real world agreements and pieces of paper can still count in the online world.

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