Time to Review Reference, Social Media Usage Policies?

By Pamela Babcock Sep 22, 2009

When co-workers get fired or laid off, many supervisors or former colleagues don’t think twice about writing online recommendations to help them in their new job search. But experts say it might pay to review, revise or reiterate the company’s reference and social media usage policies to head off potential legal problems involving the giving of recommendations about current or past employees.

“It is never good when an employer claims they fired an employee for poor performance yet there are positive recommendations from employees [and/or] supervisors that were made post-employment,” said Celeste Yeager, a labor and employment partner in the Dallas office of Gardere Wynne Sewell. “And the higher up the person who is making the recommendation is, the more undermining it can be to your legitimate, nondiscriminatory business reason for the termination.”

Jonathan T. Hyman, a partner with Kohrman Jackson & Krantz in Cleveland, says he increasingly serves—and receives—discovery requests asking for social media information, adding that if it’s on the Internet, a lawyer “who’s even remotely savvy in this area will find the information and use it to their advantage.

“It is a risk that companies take when they don’t have a handle on what employees are saying about each other online,” Hyman says. “People should not be going on online forums, social networks or other media commenting on employees’ job performance, whether it’s good or bad.”

Online Recommendation Pitfalls

LinkedIn is the tool of choice for employers researching candidates’ credentials, according to Jump Start Social Media in Kingston, N.J.

The June 2009 survey results showed that three-quarters of the 100 responding hiring managers checked LinkedIn to research job candidate credentials, 48 percent use Facebook and 26 percent use Twitter to do research before making a job offer.

Although some sites allow for references to be removed if an employee becomes the subject of litigation, attorneys can request a cache history of the employee's online profile, which will reveal the previous recommendations.

In other words, "just because a recommendation has been deleted, it does not disappear and it can be discovered," Yeager notes.

LinkedIn Corp. in Mountain View, Calif., declined a request to be interviewed, but spokesperson Krista Canfield said the company “always encourage(s) employees to be mindful of their company’s policies around giving references and that applies both on LinkedIn and in-person.”

LinkedIn is not the only business connection site where online recommendations can be posted. Others like Plaxo and Checkster.com have a feature where past supervisors can provide a 360-degree e-mail reference, although specific feedback from the previous employer is confidential since it’s amalgamated into an overall report.

Experts say most HR professionals and company leaders favor neutral recommendations, where reference checks go through one person and/or department and are limited to basic information such as name, job title, employment dates and salary.

“Generally speaking, the more sophisticated employers have policies that they will only give neutral recommendations,” Yeager explains.

That’s because employers can get sued when they give references that are essentially false or when they “make up the good or leave out the bad,” said Lester R. Rosen, attorney and president of the company Employee Screening Resources in Novato, Calif.

Many attorneys say that if you have an in-house policy prohibiting anything other than neutral recommendations, no one should be permitted to write and post online recommendations.

“If [a company has] members of management who are still writing online recommendations and [it has] a neutral reference policy, [HR needs] to make sure they are complying with that,” Yeager says. “If they get a request from a LinkedIn contact [for example] to provide a reference, they should decline and cite the policy reason.”

Yeager says she’s concerned with recommendations from someone “with limited exposure to the individual and who cannot provide appropriate insight into the day-to-day work habits.”

Revise Social Media Policies

In addition, some attorneys say that social media policies—if companies have them—should be revised to prohibit blogging about work, managers or co-workers in general, if it doesn’t already, since recommendations can creep into those areas, too.

For example, Hyman says, a co-worker or supervisor who “friends” a colleague and posts on his Facebook “wall” something like, “Great job on that project last week; you’re a real asset to the team,” or puts the same on Twitter or MySpace would raise the same concerns for him as would recommendations on a traditional business networking site.

Shay Zeemer Hable, a labor and employment attorney at Bryan Cave in Atlanta, agrees that companies should first come up with a solid reference policy that applies to all references, from old-fashioned reference letters to those in cyberspace.

But if a company allows references, she recommends that employees and managers not be authorized to provide one “that seems like it’s on behalf of the company,” that is, by saying, “I was a manager at XYZ Corporation, supervised this person, and he did a great job and was a very valuable employee.”

“Do employers then have to become the Internet police, trolling the Internet to make sure that employees are not giving recommendations contrary to your current reference policies?” Rosen asked. “It’s hard to imagine that employers would have a duty to go out and search the Internet.”

Recognizing that “we can’t do a lot to police what people do personally,” Hable says, she thinks that it is acceptable if a manager leaves a recommendation on LinkedIn that is purely personal and says something like, “I’ve known this person for 10 years, and he’s of the highest integrity and has the highest work ethic.”

She adds that the HR department can then provide clarification or examples “about what would be appropriate or not” if a lot of their folks are using online networking sites.

Pamela Babcock is a freelance writer based in the New York City area.

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