LinkedIn and “Recommending” – A refresher on potential liability

Arnstein & Lehr attorney Jesse Dill

Jesse R. Dill

Lately I’ve noticed a lot of people are taking greater advantage of LinkedIn’s “recommending” feature. With this tool, a user can request that another user comment on that individual’s professional performance, skill, reputation, and the like. Not only is this feature available, but LinkedIn actually suggests you request a recommendation to complete your profile. Unlike traditional letters of recommendation, making a request is quick and easy as it only takes a few clicks to send. Once complete, the recommendation is made public and brought to the attention of individuals who are “connected” to the LinkedIn user receiving the recommendation.

While this feature has been around on LinkedIn for a while, seeing its active use presents an opportunity to remind readers of the lowlights of potential liability that exist with recommendations. Just like the familiar letter of recommendation, one supervisor’s reference might be another litigant’s evidence.

A negative recommendation can be used to support an employee’s retaliation claim if it follows an employee’s complaint, charge, or lawsuit under any number of employment laws. Equal employment opportunity laws, and others, include provisions that prohibit employers from taking an adverse action in response to an employee’s attempt to exercise rights under the law. Further, some states may have privacy statutes that limit the information an employer can disclose about the cause of a former employee’s discharge. See Wis. Stat. § 995.50; Zinda v. Louisiana Pacific Corp., 149 Wis.2d 913, 440 N.W.2d 548 (1989).

Even a positive recommendation can present problems. For example, take a former employee who is terminated for cause and, unbeknownst to the employer, a supervisor gives that employee a glowing recommendation. The employee may try to use that LinkedIn recommendation as evidence of pretext for terminating the employee based on their protected class status. No matter which way you look at it, there are a number of pitfalls that employer’s may face as a result of a LinkedIn recommendation. Although not recognized in Wisconsin, employers should also be aware of the potential for a suit based on a negligent reference that may be brought by another employer. Jurisdictions recognizing this claim may hold a former employer liable if a reference is provided that fails to warn others of any threat to health or safety an employee may pose based on the former employer’s knowledge and experience.

These descriptions offer a glimpse into the potential problems employers might face. As a result, many employers may choose to limit any reference requests to neutral information that discloses the dates of employment or centralize written references with human resources personnel. If either is the case for your workplace, the policy should be communicated to supervisors. Those managers receiving recommendation requests should be made aware of the information an employer’s policy allows to be disclosed. Employers looking to draft a policy should consult counsel well-versed in this area of the law to help limit potential liability.

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