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A Lawyer’s Take on Linked-In Reviews

Proper documentation of employee’s conduct and performance by management may seem like a basic or almost mundane subject, but its importance is undeniable.  As an attorney advising employers about issues relating to employees, I have often stated that it is absolutely critical that supervisors and upper management think before they speak or write.  It is amazing the number of times employers’ representatives create the evidence that is ultimately used against them in a lawsuit. 

In my view, given our litigious society, it is important that management think about its comments from a litigation perspective.  For good reason, most employment attorneys advise clients to limit comments to referral requests to dates of employment and position.  However, in a world of mass layoffs and high unemployment I often see glowing recommendations and comments on social networks – and I wonder sometimes the degree in which they are based in reality.  Undoubtedly such statements can be used by employees to demonstrate performance was not the real reason for the termination, inferring the real reason to be some form of discrimination.

It is clear that many employers are using social networking tools as a method to learn more about candidates and to confirm and verify work history.  And certainly the HR professionals of a prospective employer can consider the comments that they see online in the context of the source.  But the danger is inconsistency in statements by management.  If an employee was terminated for well-documented performance-related reasons and then gets a glowing performance appraisal on Linked-in or some other social network, it is not easily reconciled from a litigation perspective — and the results can be very costly to an employer. 

Therefore, while recommendations from customers or others who have experienced your product or service are fantastic, tread with caution the next time a subordinate employee requests a recommendation.  Based on this ABA Journal article other employment attorneys share my view.

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