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Could restrictive clauses in employment contracts apply to LinkedIn?

June 23, 2010


In an interesting new legal development a US company (TEKsystems Inc) is suing a former employee for using LinkedIn to unlawfully “communicate”, on behalf of her new employer, with at least 20 employees of her previous employer. She is accused of breaching her employment contract which included a non-competition, non solicitation and non-disclosure agreement.

Interestingly, these restrictions in her employment contract did not reference violation via social media specifically, so for employers the outcome of this case could have huge ramifications. If you do have employment contracts with restrictive convenants now could be good time to go back and ensure that these agreements do specifically reference social media to avoid any possible confusion. Get a good lawyer to review your employment contracts and policies!

For professionals using LinkedIn, be aware that if you do have restrictive clauses in your employment agreements, you must be careful how you use LinkedIn post employment. It raises the interesting question – is simply “connecting” with with professional contacts via LinkedIn “solicitation”?

For a full brief on this case and it’s possible legal ramifications please read Renee Jackson, of Nixon Peabody, excellent blog post.

What do you think? Is this a privacy issue?

  1. Interesting discussion, yet it has nothing to do with Linkedin or any other social media tool.
    I’ve read the original post, and Brelyn’s breach of contract was when she went and joined the competing IT staffing firm.
    Once she’s done that, she could only get herself deeper in a hole, using linkedin, her outlook contact list, or excel spreadsheet.
    The means of communications are just “added bonus”, yet the real breach of contract was when she went to join the direct competition of her previous employer, within her probationary term (of 18 Months).

    Recruiting firms now can protect themselves (somewhat) by purchasing Talent Advantage package from Linkedin, and keeping the DB when their employees leave them, rather than let their employees build a personal DB on Linkedin, and take it with them wherever they go.

    I think the plaintiff will win this case, but not on the grounds of using Linkedin. It was merely a tool..

    • Agree Raz, as with all social media, LinkedIn is merely the channel. Interesting though that the US lawyer, Renee Jackson, advocates employers “specifically referencing social media in any policy or agreement that attempts to restrict contact between employees, former employees, customers and suppliers”. Thanks for the heads up on Talent and Advantage.

      By the way, anyone reading this Raz has published a great ebook on using LinkedIn which can be downloaded from his website

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