There is an interesting debate occurring in the legal blogosphere concerning LinkedIn, a popular business social networking site. It started with an article a couple of weeks ago in the National Law Journal, where management side lawyers were quoted giving warnings about the dangers of using LinkedIn to provide recommendations to current or former employees. The concern is that a terminated employee may use favorable recommendations on LinkedIn as evidence that the employer’s stated reason for termination–poor performance–is merely a pretext for discrimination, retaliation, or harassment.
Two posts appearing yesterday take an opposing view. Daniel Schwartz (Connecticut Employment Law Blog) and Molly DiBianca (Delaware Employment Law Blog) downplay the danger to employers of LinkedIn recommendations. Dan contends the warnings of management side lawyers are overblown, while Molly argues that news stories such as appeared in the National Law Journal are simply propaganda.
With all due respect to my colleagues in Connecticut and Delaware, in my judgment, employers should be concerned about their managers communicating about an employee on LinkedIn. It’s easy to argue in the abstract that statements on social networking sites are no big deal, but as a practical matter, any communications concerning employee performance, regardless of the media, are potential evidence in a lawsuit. The unfortunate reality is that many people, including managers or supervisors who probably should know better, tend to be careless when communicating through electronic media, whether that media is text messaging, e-mail, or social networking sites. Employee lawsuits are a fact of life in today’s world, but many of them go away, either through a relatively inexpensive settlement or a dismissal via summary judgment. What most employers really fear is the suit that is not settled, survives summary judgment, and must be tried to a jury. A careless recommendation on LinkedIn is just the sort of evidence that can generate a genuine factual dispute in a case and make it more risky and expensive than it otherwise would have been.
This is an important discussion because social networking remains a relatively new phenomenon that the law has not yet caught up with. We welcome more comments and debate on this issue.