Employment attorneys are warning of a new trend: the use of positive recommendations on LinkedIn as evidence in lawsuits against the recommender.
Here’s how it works: an employer gives a positive recommendation on Linked In for an employee. The employee is later let go. The positive recommendation on LinkedIn now becomes ammunition and evidence in a lawsuit against the employer for discrimination, harrassment, or other improper firing practices.
In fact, some employers-side attorneys believe that attorneys who primarily represent employees in labor disputes are already actively searching LinkedIn for these positive recommendations whenever they take on a case where there is a claim of wrongful termination.
It makes sense. If you fire somebody for poor performance, but have previously given them a recommendation on LinkedIn praising their work ethic, it will be easier to convince a judge or jury that there was some other reason that you let them go – such as their ethnicity or age.
Explains Wayne Pinkstone, an employment lawyer with Fisher & Phillips of Atlanta, Georgia, “That could prove problematic if a plaintiffs’ lawyer is mining these sites. The whole social networking issue is something that’s on our minds as management-side employment lawyers.”
So what should an employer do when faced with a request from an employee or former employee to provide a recommendation on LinkedIn or some other social networking site?
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“Just don’t do it,” advises Carolyn Plump, an employment lawyer with Mitts Milavec, in Philadelphia, adding that “Generally, my advice is that I think employers are often better served by merely stating dates of employment, positions with the company and salary, and staying away from much more because there are so many potential ramifications if they say something.”
This is, of course, the line that employers in many states are already toeing when it comes to written and phone requests for references. It only makes sense that it should be extended to social networking sites, but the informality of the venue often leads otherwise wary managers to relax their guard.
The reality, however, is that if anything, posting something publicly on the Internet requires more vigilence, as whatever you post online becomes part of an indefatigable permanent Internet record, where even if the original is deleted, copies hide in archiving sites, caches, and even local PC files, waiting to come back and haunt you.
As Plump sums up so succinctly, “If they say something negative, there could be a lawsuit. If they say something positive, there could be a lawsuit.”
So don’t say anything at all.
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Joe – the issue is when the employer themselves says, publicly “You did a great job,” and then later lets the employee go (or vice versa). The lawsuit becomes (in part) “If I did such a great job, why did you let me go? It must be because of discrimination, because you already admitted that I did a great job.”
I see the use of this, but I find it unrealistic that an employer, specifically managers, need to fear that recommendations are somehow guarantees or extensions to employment.
What are recommendations? Opinions, personal accounts and effectively “hearsay.” Not only that, recommendations can be willfully removed anytime, should a conflict of interest arise.
I’m not a lawyer, but I want to caution others to think realistically. If someone plans to sue their (former) employer, a LinkedIn recommendation isn’t why.
~Joe