Many of us send and receive recommendations on social media sites, such as LinkedIn, from co-workers, vendors, and clients about our work performance or services. Recently, employers have realized that these may be inconsistent with the employer’s policies on neutral references. Worse yet, these recommentdation may even be providing false or fraudulent information. Employers need to take a hard look at their employees’ recommendations on social media.
Employers have long realized that providing negative references for former employees can create liability for defamation. As for positive references, a number of courts have found employers liable who provided false positive references for former employees that employers knew had committed crimes or engaged in other misconduct. As a result, many employers today simply provide neutral references for all former employees (name, former job title, salary, and dates of employment) and they have implemented policies requiring their employees not to make recommendations at all.
Unsanctioned recommendations appearing on social media sites, therefore, can cause complications for employers. Take, for instance, an ill-timed positive reference published by a manager on a social media site extolling his former employee’s honesty while, unbeknownst to the manager, the employer was contemplating litigation against the former employee for taking trade secrets or other confidential business information as he was leaving.
To avoid these and other similar issues, employers should consider taking several steps. Most importantly, employers should amend their written social media or reference policies to address unauthorized employee recommendations and references on social media sites. Depending upon the circumstances, barring employees from making such references may be appropriate. However, this is not always practical or prudent for employers who are encouraging employees to promote their businesses through social media. Under these circumstances then an employer may require instead that employees request authorization from their human resources department or a designated individual such as the Controller or CFO before making references or recommendations.
Simply amending social media and references policies and procedures, however, may be insufficient. Employers need to be vigilant and proactive. Appointing suitable personnel and, if possible, a social media manager to monitor public social media sites to ensure that employees are not violating critical policies is another measure employers should consider. Of course, this must be done in a manner that respects the off-duty rights and protected concerted activities of the employee. See March and November 2011 posts regarding Facebook & the NLRB.
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