Corporate attorneys are advising supervisors and managers to be careful when posting overly-positive or potentially misleading employee endorsements on LinkedIn. The big concern is that crafty employee plaintiffs’ counsel will use LinkedIn reviews much in the same way that they currently use positive reviews found in the employee’s written file: to establish that their client was wrongfully discharged or fired as a result of discrimination.
Counsel who represent employers have all come across glowing employee reviews that discuss, at length, the superior qualities and work ethic of an employee who, within weeks of the review, is fired for poor performance or insubordination.
As described in the National Law Journal’s article:
Plaintiffs’ lawyers, they fear, are scouring these sites, looking for evidence to dispute firings, as most LinkedIn recommendations are positive. So if a supervisor claims that an employee was let go due to performance problems but gave a rave review about him or her on LinkedIn — that, the lawyers stress, won’t look so good.
It is a valid point. Employment lawyers and H.R. personnel are constantly instructing management and supervisors to conduct regular, accurate, performance reviews. Reviews posted on LinkedIn need to be equally accurate. A good practice employers might implement is to tell their supervisors and managers not to post reviews, positive or negative; according to Carolyn Plump, a partner at Philadelphia’s Mitts Milavec, as quoted in the National Law Journal:
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.
Of course, like most stories, this one has both sides. The example cited by the National Law Journal is that of a supervisor who is constantly leaving negative reviews. While a single negative review might be offered as evidence of discrimination, counsel for the management could offer evidence of all the other negative reviews to establish that the supervisor was not singling out a particular gender, race, or nationality.
So what is the conclusion? It is the always the same conclusion. Conduct regular, accurate, performance appraisals and enforce your existing policies indiscriminately.
As we enter Autumn, I suggest you take a look at my recent post on Avvo’s Lawyernomics blog. The title of the post is “NLRB: Time to Update Your Social Media Polices (Again?)” and it addresses new guidance from the National Labor Relations Board on social media policies. The field of social media policies is ever changing and employers need to stay abreast of these changes, particularly the issues identified by the NLRB.
Give the post a read and then go edit your social media policies (again)!
As I mentioned in prior posts [here and here and here and here], California was one of the first states to propose legislation that would protect applicants, employees, and students from having to disclose their social media passwords.
We can now add California to Maryland, Delaware, and Illinois that have officially passed a social media privacy protection law. Notably, California is the first state to pass a comprehensive law that protects both employees and students (as you will recall from my prior posts, protection of students’ social media passwords was one of the major goals of the legislation).
A quick reference:
States that have passed privacy legislation protecting employees / employers:
States that have passed privacy legislation protecting students / schools:
States that have social media privacy legislation of some sort pending:
- New Jersey
- New York
- South Carolina
I am sure this list will continue to grow. For more information Employer Access to Social Media Usernames and Passwords, check out the National Conference of State Legislatures’ website.
And once again, congratulations to Brad Shear — a good friend of this blog — for his work in this arena. Brad helped draft the model legislation that is being picked up by legislatures around the country. You should read his blog and follow him on Twitter (@bradleyshear).
Here is my standard “Facebook Passwords” disclaimer: if you’re doing this (requiring passwords) now, go ahead and stop. One way or the other, you will not be allowed to keep or continue this practice.
For a detailed review of the California law, check out the write-up by Seyfarth Shaw’s Trading Secrets blog.
Illinois has officially joined Maryland and Delaware. Like the laws in the other states, the Illinois version prevents employers from requiring employees and/or applicants from disclosing their social media account passwords.
Once again, our good friend Bradley Shear appears to have had a major influence on the legislation. Per the Wall Street Journal:
The laws are both “pro-business and pro-privacy,” attorney Bradley Shear told Law Blog. Mr. Shear, who advised the Illinois bill’s sponsor and drafted the Maryland law, said the new laws represent a trend that has support from both Republicans and Democrats.
Over on his blog, Shear on Social Media, Brad points out an interesting aspect of the Illinois law:
While an Illinois employer may not be able to require that an employee or job applicant provide access to one’s password protected Facebook page as a condition for employment, one of your Facebook Friends can still freely contact your employer and send them your password protected digital content.
As always, good on Brad for continuing to push for and help author this legislation. Nearly all of my employment law clients are employers (not employees) and it is clear that these laws will benefit businesses as well as limit risk and exposure. And keep your eyes out for similar bills to officially hit the books in the near future; we have known for a long time that they were coming (and don’t expect them to stop):
California has a similar bill under consideration and could be the next state to pass it, Mr. Shear said. Michigan also has a bill in the legislature, and New Jersey has its own version in the works, according to Mr. Shear. In all, at least 15 states have introduced some kind of social media privacy legislation.
And In addition to those 15 states, SNOPA is still hanging around on the federal level.
Let me reiterate the advice that I post at the end of each of these social media password posts: Once again, if you’re doing this (requiring passwords) now, go ahead and stop (voluntarily–or if you’re in Maryland, Delaware, or Illinois, because it’s the law, and if you’re in California, Michigan, or basically any other state, because it is going to be the law). One way or the other, you will not be allowed to keep or continue this practice.
Maybe Brad will weigh in via a comment and let us know whether the Illinois law includes the protections for student athletes (which he always points out as one of the most important aspects of the social media statutes he helps draft–student athletes are really on the raw end of this social media password scheme). Based on what I have read, it does not appear so (but hopefully I am wrong).