One of the continuing themes of this blog has been to address how the new social media world may impact traditional claims in the employment law context. One of the areas that I suspect will be discussed in increasing fashion is the nature of recommendations and references being made through social media. Once again, it is the ease and informality of social media that may spark the flame, and it may well be those of you with good intentions who may be the first to be on the wrong end of the discussion.
LinkedIn is just one of the social media sites that allows one to “recommend” someone else, based on a prior relationship or experience with that person. Since LinkedIn tends to be viewed as more professional and business-related than those sites that are considered to be more “social” in nature, recommendations and references given on that site may hold slightly more clout than posts on other sites.
What if one of your company’s supervisors gives a positive recommendation through LinkedIn to a former employee? Perhaps you will face a difficult challenge defending a later lawsuit by that same employee who argues that the asserted basis for the termination in the lawsuit (e.g., poor performance) is belied by the positive recommendation given by the supervisor through the social media site. And, perhaps a third-party (e.g., subsequent employer) may assert a claim when a positive recommendation by someone in your company fails to disclose that the employee had in fact been terminated by your company due to violent outbursts against a co-worker.
It is simple to click a “recommend” or “like” button, particularly when your intentions in doing so are nothing but good. It will be up to the courts and, perhaps, governmental agencies to determine the extent to which a duty or relationship arises from those simple mouse clicks, as well as the import of these types of recommendations when considered in the context of today’s social media usage. But just as it is important to understand that your supervisors and managers act as the mouthpiece for your company when it comes to things like unlawful harassment and discrimination, this area of potential exposure cannot be ignored either.
Employer Take Away: What should you as an employer take away from this development?
Your company should have an established (and consistently enforced) reference policy that expressly applies to social media. The policy should address the substance of what can and cannot be provided as a recommendation or reference, and clearly identify the only people in the organization who are authorized to give a recommendation or reference. You also might consider having an employee (or former employee) sign a reference release prior to your company giving any type of information to a third person.