{"id":599,"date":"2010-12-10T19:00:41","date_gmt":"2010-12-10T19:00:41","guid":{"rendered":"https:\/\/www.bfvlaw.com\/the-following-article-was-featured-in-the-summer-2010-edition-of-the-atlanta-bar-associations-labor-employment-law-section-newsletter\/"},"modified":"2022-09-15T17:19:22","modified_gmt":"2022-09-15T17:19:22","slug":"the-following-article-was-featured-in-the-summer-2010-edition-of-the-atlanta-bar-associations-labor-employment-law-section-newsletter","status":"publish","type":"post","link":"https:\/\/www.bfvlaw.com\/the-following-article-was-featured-in-the-summer-2010-edition-of-the-atlanta-bar-associations-labor-employment-law-section-newsletter\/","title":{"rendered":"Restrictive Covenants in the Social Media Age"},"content":{"rendered":"

The following article was featured in the Summer 2010 Edition of The Atlanta Bar Association\u2019s Labor & Employment Law Section Newsletter.<\/em><\/p>\n

LinkedIn\u00ae and Restrictive Covenants:\u00a0 Issues and Potential Pitfalls to Consider in the Age of Social Media<\/strong><\/p>\n

Albert Einstein once stated that \u201cTechnological progress is like an axe in the hands of a pathological criminal.\u201d Given the chance, Einstein may have enjoyed the opportunity to post a blog on relativity or to befriend Sigmund Freud on Facebook. But as stories of suicidal \u201ccyber-bullying\u201d and Tiger Woods\u2019 \u201csexting\u201d headline daily tabloids, it appears that Einstein\u2019s cautionary observation is as applicable today as ever. Indeed, a recently filed lawsuit alleging unlawful solicitation through the use of social media highlights the dangers both employees and employers face through the use of social media in the workplace.<\/p>\n

Litigation Involving LinkedIn\u00ae<\/strong><\/p>\n

In March 2010, TEKsystems Inc.<\/a>, a Maryland company engaged in the business of recruiting, employing and providing the services of technical, industrial and office personnel, filed a lawsuit in the United States District Court for the District of Minnesota against three former employees Brelyn Hammernick, Quinn VanGorden, Michael Hoolihan and their new employer, Horizontal Integration, Inc.\u00a0\u00a0 At first blush, the lawsuit appears to be a \u201cvanilla\u201d unfair competition case alleging a sundry of claims including breach of contract, breach of duty of loyalty, misappropriation of trade secrets and tortious interference with contract.\u00a0\u00a0 What is somewhat unusual, however, is that the complaint specifically alleges that one of the former employees violated a non-solicitation covenant by contacting TEKsystems\u2019 contract employees through her use of LinkedIn\u00ae.\u00a0 In particular, the Complaint alleges that Hammernick improperly communicated with at least twenty TEKsystems\u2019 contract employees and messaged an invitation to have them visit her new office and \u201chear about some of the stuff we are working on.\u201d\u00a0 \u00a0<\/strong><\/p>\n

Whether such activity on LinkedIn\u00ae (or other business and personal social networking sites) would constitute a breach of a non-solicitation of employees covenant under Georgia law is uncertain.\u00a0 It is also uncertain whether similar activity directed at customers would constitute a breach of a non-solicitation of customers covenant.\u00a0 There do not appear to be any reported decisions considering whether evidence of such communications and messages on LinkedIn\u00ae constitutes solicitation.[1]\u00a0\u00a0 The absence of such decisions results in large part from the nature of litigation involving restrictive covenants.\u00a0 As in many states, cases in Georgia involving restrictive covenants are often heavily litigated and largely decided at the injunctive relief stage.\u00a0 At this stage, based on Georgia\u2019s strict laws on restrictive covenants, the enforceability of the covenants is usually the determinative issue.\u00a0 While the former employer will undoubtedly present evidence in support of its request for injunctive relief that the employee has breached or intends to breach the restrictive covenants, nearly all Georgia appellate decisions reviewing the grant or denial of injunctive relief focus on the trial court\u2019s ruling on the enforceability of the covenants, rather than the validity of such evidence and whether a breach has occurred or is likely to occur.<\/p>\n

Thus Georgia appellate courts have had rare occasion to specifically consider and address what evidence will or will not support a claim for breach of a non-solicitation covenant.\u00a0 In Roberts, Ltd. v. Parker, 215 Ga. App. 310 (1994), the Court of Appeals reversed a grant of a directed verdict for a former employee who brought suit on a note his former employer had executed to him as part of a severance package.\u00a0 The employee had entered into a non-competition agreement as part of that package.\u00a0 When the employer learned that the employee had joined a competitor, the employer ceased making payments on the note.\u00a0 In support of its defense that the employee\u2019s breach of the non-competition agreement terminated its obligations under the note, the employer introduced evidence that the employee had sent a series of letters to clients of the employer in which he offered his assistance.\u00a0 The trial court found that these letters were not efforts to solicit business and directed a verdict for the employee for the amount owed under the note.\u00a0 However, the Court of Appeals reversed and held that the factual determination of whether the letters were a \u201csolicitation\u201d must be made by the jury.<\/p>\n

Georgia\u2019s body of appellate law thus does not provide much insight as to what conduct on LinkedIn\u00ae might constitute evidence of solicitation in a lawsuit regarding a former employee\u2019s restrictive covenants.\u00a0 Undoubtedly, if an employer is able to obtain evidence of LinkedIn\u00ae activity where the former employee is actively soliciting his or her old customers, such evidence can be used to support the employer\u2019s request for injunctive relief.<\/p>\n

What Types of Activity May Constitute Unlawful Solicitation?<\/strong><\/p>\n

If courts are called upon to answer what kind of LinkedIn\u00ae activity will support a claim for breach of a non-solicitation covenant, such cases will likely be decided on their own specific facts and circumstances.\u00a0 \u00a0As a general matter, courts will likely treat communications within LinkedIn\u00ae the same as they treat other forms of communication.\u00a0 For example, a message directed to a LinkedIn\u00ae contact offering to sell a product to the contact would obviously be deemed a solicitation.\u00a0\u00a0 Other types of communications unique to LinkedIn\u00ae, however, raise interesting issues as to which it may not be as easy to predict the outcome:<\/p>\n