Labor & Employment Law
LinkedIn Reviews Can Come Back to Haunt Employers, Lawyers Say
Posted Jul 7, 2009 2:27 PM CST
By Sarah Randag
Management-side employment lawyers are advising their clients against writing recommendations for current or recent employees on LinkedIn.
If an employer writes a positive review for an employee who is later fired, that review could be presented as evidence that discrimination rather than performance brought on the termination, lawyers told the National Law Journal (reg. req.).
"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," Carolyn Plump, a partner at Philadelphia's Mitts Milavec told the National Law Journal. "If they say something negative, there could be a lawsuit. If they say something positive, there could be a lawsuit."
The story cites a recent poll from Jump Start Social Media stating that 75 percent of hiring managers use LinkedIn to research candidates.
Employee-rights attorney Linda Friedman of Chicago's Stowell & Friedman said LinkedIn recommendations can also backfire on a plaintiff. If a suprevisor makes identical recommendations on LinkedIn or another website of everyone under him or her, that could disprove a discrimination claim, Friedman said.
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Comments
Cheryl Fox
Jul 10, 2009 6:52 AM CST
Maybe they should only write recommendations for straight white male employees? Or, I know, they should only write positive recommendations for competent employees! brilliant!
LHS
Jul 10, 2009 6:56 AM CST
Why discrimination? It sound much more relevant to stealth layoffs that are supposedly for “performance” reasons but clearly aren’t, when the law firm is trying to avoid the term “layoffs.” I don’t see how discrimination cases would apply to this situation.
tweets mcghee
Jul 10, 2009 7:26 AM CST
I thought everyone knew LinkedIn reveiws were a joke? Employers actually write them, and actually research them too?
employment lawyer
Jul 10, 2009 7:33 AM CST
I agree with the article. @1 You wouldn’t believe how frequently “competent” employees turn into incompetent employees. Thus, you run into “I couldn’t have been fired for performance reasons - just last year, my supervisor said I was an excellent employee. This is proof of discrimination!” @2 The article isn’t referring merely to law firm lawyoffs, but to advice lawyers give clients.
Theodore
Jul 10, 2009 7:44 AM CST
I have to put this in the “absurd” bucket. Yes, if you say something nice about someone’s work it could be used against you. But if someone does good work, why not compliment them in a LinkedIn blurb - or, let’s go old school, a nice hand written letter (also admissible). Or we can just clam up as a society, writing nothing about just about anything because it could all come back to haunt us one way or another. Better not pay merit bonuses either - that could be evidence that someone was doing a good job. There are limits to things and common sense is a good guide, but let’s not over lawyer all aspects of life out of fear.
Philip J. Germani
Jul 10, 2009 7:52 AM CST
Well put, Theodore! Let common sense be our guide. Common sense ...ah, what a concept.
Peter
Jul 10, 2009 7:56 AM CST
Lawyers view themselves as mandarins. The pricing and competence of legal services is truly hard to evaluate, but perhaps the Linked-In comments are a form of “consumer reports.”
Trying to stop the practice is futile. Better to embrace it as a means to providing the kinds of services that society really needs. The one important element is that the clients and individuals submitting Linked-In comments should be clearly identified.
employment lawyer
Jul 10, 2009 8:18 AM CST
@Theodore, many companies find advice from employment lawyers to be “absurd,” just as you do. Then after paying half a million dollars in a down economy to a plaintiff in a meritless discrimination lawsuit, on top of a couple hundred thousand in legal fees, they think a little differently. Again, the article is NOT referring to lawyers leaving reviews for other lawyers; it’s talking about the advice lawyers give clients (i.e. non-lawyers).
MD
Jul 10, 2009 9:02 AM CST
The author makes a good point. References reflect opinionts on employees at a point in time under circumstances that constantly change. If someone needs a reference, I provide it when it is needed, never online. Anecdotally, people seem to believe what they read online whether or not it is true or out of date.
mel
Jul 10, 2009 9:10 AM CST
If you don’t understand employment discrimination law, you probably wouldn’t understand why this is good advice. Once a plaintiff proves their prima facie case (which is usually a very easy task—it’s not a very high standard), the burden is on the employer to prove that they had a legitimate, non-discriminatory reason for terminating the plaintiff. At least 8/10 times, this “legitimate, non-discriminatory reason” is performance. The burden then shifts back to the plaintiff to prove that the reason the employer is giving for the termination is false. If the plaintiff is armed with linked in evals from the people who are now saying they were a bad performer, that may be at least enough to get them past summary judgment. This is certainly sound advice to give clients.
Structuralist
Jul 10, 2009 9:27 AM CST
Never write reviews for employees unless absolutely necessary and then only in-house, generic reviews should be used. No benefit can be realized from a review and many bad things can happen.
David Michaels
Jul 10, 2009 1:58 PM CST
Interns, especially voluntary interns, require recommendations as an incentive to work.
JB
Jul 10, 2009 2:43 PM CST
What is Linked-In and why should I care?
greg
Jul 10, 2009 4:39 PM CST
Mel - I do understand employment law, and well, this advice is still stupid. So what if the person comes in with LinkedIn evals? What’s the difference between providing a positive recommendation on LinkedIn and a positive annual review? Or, better yet, the lack of a negative review? And what fool would actually believe that an employee’s performance cah’t change over time - today you’re good, tomorrow you’re slacking off and resting on your laurels?
The fact is, most employers do a piss-poor job when it comes to employee management - failing to give warnings or feedback at all. And then, when they terminate an employee, the employee feels sandbagged. More often not I’ll posit that is the genesis of the lawsuit. Or maybe it is outright discrimination…
C. Brown
Jul 10, 2009 6:30 PM CST
@10: The way I’ve seen discrimination cases handled in my state, the ones that actually make their way through the court system, anyway, the employer usually wins. Since at will means an employer can virtually fire anyone for any reason, it makes it difficult to prove that it was for race, age, handicap, etc.
But the company I work for strongly discourages recommendations, but does allow managers to write them as long as it’s not on company letterhead. Few will actually do it, though.
Kiringer
Jul 12, 2009 5:16 PM CST
#14 (greg)
There is a huge difference between placing a recommendation in the private files of an employer and posting a recommendation on the Internet.
The difference is analogous to someone insulting someone in the privacy of their own home and insulting this same person in the street where everyone can hear it.
The plaintiff can argue that if the employer took the time to post a positive recommendation online, then this employer must have had tremendous confidence in this plaintiff’s competency - after all, why post information in a venue where the whole world can see it? Once you post something online, it can remain public forever even if you are allowed to delete that information from the website.
But if a positive recommendation is just placed in the private files of an employer, the employer can argue that this recommendation was reflective of an employee’s performance over a period of time and the employee’s performance has since changed. It is a lot more difficult for the employer to make this argument when they have posted positive recommendations on the Internet after many have probably seen it.
There are so many court cases involving information posted on social websites such as Facebook, MySpace and YouTube. Everyone thinks that posting information on the Internet is just like having a converation in the living room with friends and family. It’s not. The pictures, videos and comments you post can be used against you for years to come. There have been cases where colleges have refused to admit students because of things posted about them on Facebook, etc.
This article provides excellent advice which everyone should heed.
R
Jul 13, 2009 10:52 AM CST
Outstanding advice from commenters #16 (Kiringer) and #10 (Mel). Thank you!
Tim
Jul 13, 2009 2:00 PM CST
I’ve never heard of people getting recommendations from their current employers. What would they be recommending you for? Continued employment?
LinkedIn recommendations are great for freelancers and people providing services to business clients, though. I know of probably ten different cases where someone saw a friend’s LinkedIn recommendation of a lawyer or a consultant and it led to more business for that service provider.
Kiringer
Jul 13, 2009 6:11 PM CST
#18 - Tim.
Sure, online recommendations and evaluations can help a great deal but they can also hurt as well.
That’s the thing about the Internet - the more information you post on it, the more it can help you or hurt you depending on the person(s) who collect the information.
Would you post your resume, background information, current salary, employer references and evaluations, current address, current phone number, and current e-mail address on lamp posts all across your town or city? Probably not. But people post all of this information and more on the Internet where a lot more people can see it. Who knows how this information will be used? For stalking, identity theft, potential lawsuits - just to mention some?
People think that just because they are posting information online in the comfort of their own home or office that the information is somehow private or safe as if they are providing information to friends. But you are at the mercy of anyone who sees that information. Be careful about what you post.
Bill
Jul 14, 2009 1:19 PM CST
The standard employment lawyer’s advice to an employer client reveals the stupidity of our judicial system. Don’t provide a positive recommendation - you might get involved in to a discrimination lawsuit. Don’t provide a negative recommendation - you might get sued for defamation. Don’t provide any recommendation - you might get sued if your reference letter fails to warn the next employer that your former employee is a sociopath.
Our judicial system encourages groundless and wasteful lawsuits by so-called “victims” and their extortionist attorneys seeking the pot of settlement gold at the end of the employment discrimination law rainbow.
Employer’s must have the common sense and courage to give a favorable letter of recommendation on an outstanding former employee and an honest negative recommendation on a former employee who was worthless. Unfortunately our judicial system punishes honesty, common sense and courage and rewards litigiousness. Our flawed system promotes incompetence and hides brilliance.
These comments relate to letters of reference, not to LinkedIn or other online postings.
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