Recently, an interesting debate has erupted in the employment law blogosphere over this National Law Journal piece cautioning employers about the risks posed by making recommendations on LinkedIn — a social networking website for professionals. The perceived danger scenario is where a manager “recommends” the work of a subordinate, who is later terminated for poor performance. The former employee then sues, and uses the manager’s “recommendation” as evidence that the stated reason for the termination (poor performance) is a pretext. The debate over this issue centers on the true risk to employers of LinkedIn recommendations—some say the risk is real; others that it is overblown.
Our good friends Molly DiBianca of the Delaware Employment Law Blog and Daniel Schwartz of the Connecticut Employment Law Blog argue that the risk is overblown. First, they point out that this scenario has played out in exactly zero cases to date. Second, because managers are extremely unlikely to recommend poor performers, this scenario is unlikely to occur frequently. Jon Hyman of the Ohio Employment Law Blog and Patrick Smith of the Iowa Employment Law Blog disagree and argue that employers should be concerned about such recommendations because people tend to be careless on the internet, and a LinkedIn recommendation can provide a crushing blow to the employer’s chances of prevailing on summary judgment in litigation.
So who’s right?
All of them! Molly and Daniel’s point is well-taken. I’ve personally been on LinkedIn for years, and have never given a recommendation to anyone and have received only one—from the person who introduced me to LinkedIn in the first place. Without comment on whether I deserve anyone’s recommendation, I expect that my experience is representative of the norm—that most people are not providing LinkedIn recommendations willy-nilly. On the other hand, Jon and Patrick are correct that were someone to provide the sort of recommendation discussed above, it could have serious implications in a subsequent lawsuit. To sum up: the frequency is low, but if and when it does happen the risk is significant.
But what about a similar but much more common occurence: the inflated performance review? Just like the overly kind manager who reluctantly leaves a recommendation on LinkedIn for an undeserving subordinate, managers’ reviews of subordinates often tend to overinflate performance. Why? Human nature.
Many managers prefer to take the path of least resistance with poor performers to avoid being perceived as “mean,” making someone feel bad, or creating tension in the workplace. Employers should minimize their risk of exposure by limiting the circumstances in which managers provide feedback about employees—internal or on the internet. Limit performance reviews to controlled circumstances and make it clear to managers that evaluations should reflect the employee’s actual performance. In defending litigation where performance is at issue, it is far preferable to have no written feedback about an employee than it is to have neutral or positive feedback that undermines the employer’s legitimate reason for the employment action.