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)!
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).
You may have read that the NLRB recently released its third publication addressing social media policies and their “lawfulness” under the NLRA (specifically, whether the policy has a chilling effect on protected union activities such as concerted efforts related to complaining about work conditions, etc.). In what is styled as the: “Acting General Counsel releases report on employer social media policies,” the NLRB has taken yet another step to bring itself to the forefront of social media policy related issues.
You may also know that I am in the throws of a two-week jury trial and have not had much time to post recently. I have some fairly strong opinions about the NLRB’s latest publication. But that is for another post. I already link to several resources where you can find form or sample social media policies for employers. Well, now the NLRB has given its stamp of approval to one (shocking, I know). While I let my emotions subside over the NLRB’s stance on social media policies in general, consider the following, which the NLRB approved in its entirety (yes, I realize I am a little late to the game with this post):
Social Media Policy
Updated: May 4, 2012
At [Employer], we understand that social media can be a fun and rewarding way to share your life and opinions with family, friends and co-workers around the world. However, use of social media also presents certain risks and carries with it certain responsibilities. To assist you in making responsible decisions about your use of social media, we have established these guidelines for appropriate use of social media.
This policy applies to all associates who work for [Employer], or one of its subsidiary companies in the United States ([Employer]). Managers and supervisors should use the supplemental Social Media Management Guidelines for additional guidance in administering the policy.
In the rapidly expanding world of electronic communication, social media can mean many things. Social media includes all means of communicating or posting information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, whether or not associated or affiliated with [Employer], as well as any other form of electronic communication.
The same principles and guidelines found in [Employer] policies and three basic beliefs apply to your activities online. Ultimately, you are solely responsible for what you post online. Before creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance, the performance of fellow associates or otherwise adversely affects members, customers, suppliers, people who work on behalf of [Employer] or [Employer’s] legitimate business interests may result in disciplinary action up to and including termination.
Know and follow the rules
Carefully read these guidelines, the [Employer] Statement of Ethics Policy, the [Employer] Information Policy and the Discrimination & Harassment Prevention Policy, and ensure your postings are consistent with these policies. Inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject you to disciplinary action up to and including termination.
Always be fair and courteous to fellow associates, customers, members, suppliers or people who work on behalf of [Employer]. Also, keep in mind that you are more likely to resolved work-related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying.
Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.
Be honest and accurate
Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly. Be open about any previous posts you have altered. Remember that the Internet archives almost everything; therefore, even deleted postings can be searched. Never post any information or rumors that you know to be false about [Employer], fellow associates, members, customers, suppliers, people working on behalf of [Employer] or competitors.
Post only appropriate and respectful content
- Maintain the confidentiality of [Employer] trade secrets and private or confidential information. Trades secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.
- Respect financial disclosure laws. It is illegal to communicate or give a “tip” on inside information to others so that they may buy or sell stocks or securities. Such online conduct may also violate the Insider Trading Policy.
- Do not create a link from your blog, website or other social networking site to a [Employer] website without identifying yourself as a [Employer] associate.
- Express only your personal opinions. Never represent yourself as a spokesperson for [Employer]. If [Employer] is a subject of the content you are creating, be clear and open about the fact that you are an associate and make it clear that your views do not represent those of [Employer], fellow associates, members, customers, suppliers or people working on behalf of [Employer]. If you do publish a blog or post online related to the work you do or subjects associated with [Employer], make it clear that you are not speaking on behalf of [Employer]. It is best to include a disclaimer such as “The postings on this site are my own and do not necessarily reflect the views of [Employer].”
Using social media at work
Refrain from using social media while on work time or on equipment we provide, unless it is work-related as authorized by your manager or consistent with the Company Equipment Policy. Do not use [Employer] email addresses to register on social networks, blogs or other online tools utilized for personal use.
Retaliation is prohibited [Employer] prohibits taking negative action against any associate for reporting a possible deviation from this policy or for cooperating in an investigation. Any associate who retaliates against another associate for reporting a possible deviation from this policy or for cooperating in an investigation will be subject to disciplinary action, up to and including termination.
Associates should not speak to the media on [Employer’s] behalf without contacting the Corporate Affairs Department. All media inquiries should be directed to them.
For more information If you have questions or need further guidance, please contact your HR representative.
And there you have it. A valid, enforceable social media policy from the NLRB. Stay tuned for my scathing remarks on the remainder of MEMORANDUM OM 12-59 and its criticism of basically every social media policy currently in existence. Once trial is over, I will let you know how I really feel about the NLRB’s position on social media governance and employer rights.
But, until then, hopefully this post will help raise some compliance issues that you can address and implement.