Several employment lawyers recently have debated whether employers should permit their employees to “recommend” a former employee on LinkedIn. The debate began after a National Law Journal article quoted two management-side attorneys who counseled against permitting such recommendations. According to these lawyers, a positive recommendation arguably could provide evidence of pretext in a discrimination lawsuit if the former employee who is the subject of the recommendation had been terminated for poor performance. The contrarians in the debate contend that this scenario is unlikely to occur and even if it did, the LinkedIn recommendation would not be particularly persuasive evidence of pretext.
Both sides have their points, but, in my view, neither side has the answer. Experienced employment litigators know that in the “wrong case” a positive LinkedIn recommendation could result in the denial of summary judgment — or worse, an adverse jury verdict — and accompanying recriminations for not having advised the defendant to prohibit such recommendations. At the same time, implementing a policy to avoid the unusual case where a manager is willing to make positive public proclamations about a litigious poor performer denies the employer the benefit of whatever good will might result from these LinkedIn recommendations.
The answer, however, does not have to be a Manichean one. Rather, employers can choose from a range of options, depending upon corporate culture and risk tolerance. Some policy options, ranging from most to least restrictive, include the following:
- Prohibit all LinkedIn recommendations;
- Prohibit LinkedIn recommendations by anyone who has formally evaluated the performance of the person making the request;
- Permit LinkedIn recommendations only of former employees who voluntarily left the organization;
- Permit all LinkedIn recommendations by anyone of anyone but subject to the following guidelines: (a) If you have anything negative to say about the person, reject the recommendation request; (b) If you have something positive to say, be accurate, complete, and truthful; and (c) Do not exaggerate or overstate.
More options most likely will be developed over time. Employers should not be shoehorned into a one-site-fits-all solution.
This entry was written by Philip L. Gordon.