Out of concern for unintended legal consequences like defamation claims, most employers long ago created policies and procedures concerning employment references. Often only Human Resources is authorized to provide references on the organization’s behalf. And, the information provided is usually limited to factual data such as dates of employment, position held, and salary. From the questions we are receiving from members, however, it seems that supervisors and managers are not following these guidelines when it comes to recommendations on social media.
Consider this scenario. A current or former employee asks a manager, “Can you recommend me on LinkedIn?” Not sure how to say “no” or wanting to be helpful, the manager presses a few buttons on her computer and sends her recommendation out to the cyber world. With those few key strokes, the manager may be exposing the organization to liability that it has taken steps to avoid.
The adage, no good deed goes unpunished, can prove itself true in these situations. That online recommendation can come back to haunt the employer if the employee is later terminated and files a dispute. How bad does it look for the employer if it later terminates the employee for poor performance to have the manager’s good LinkedIn recommendation introduced as Exhibit A? This is not an unlikely scenario. When an employee is terminated and wants to sue, it is common for his or her attorney to look for good job evaluations, awards, and other accolades that would contradict an employer’s argument that the employee was a poor performer. The attorney then uses this information to show that there was no legitimate reason to terminate the employee and, therefore, something nefarious and illegal was really behind the decision.
Employers may wish to remind supervisors and managers of their reference policies and add language to them clarifying that the prohibition covers all forms of recommendations, including those given on social media.