As social media continues to pervade every aspect of our lives, we are beginning to see how it affects the workplace in varied and sometimes unpredictable ways. Imagine this scenario.

You have an employee that, despite several warnings and your active coaching, continues to underperform. Consequently, you terminate the employee, explaining that his performance is entirely unsatisfactory. The employee then files a discrimination lawsuit with the EEOC. In your Position Statement you assert that the employee was a poor performer, attaching as support his unfavorable performance reviews and some of your “feedback” emails. The employee responds by attaching a LinkedIn “recommendation” from a Director in another department dated only one week before the employee’s termination extolling the employee’s skills, work ethic and job performance. The employee then asserts that because the recommender is in management, her recommendation performance assessment is an official company record, rendering your defense pretextual and not credible. The EEOC agrees.

Far‐fetched? Not exactly. I have seen this issue come up in my own practice, and as the total number of unique LinkedIn users continues to grow (it currently has 467 million users), the issue will likely continue to arise in the future. So what is an employer to do?

The solution is quite simple to articulate, although perhaps hard to implement. Most employers already have policies prohibiting employees from providing references on former employees. Employers should consider amending those policies to further prohibit any employee having managerial or supervisory authority from providing ‐‐ outside of the company’s formal performance review process ‐‐ recommendations, references or performance assessments for current employees. This would include on social media platforms like LinkedIn. We would happy to assist you in reviewing and drafting compliant policies.

About The Authors

This alert was prepared by Marathas Barrow Weatherhead Lent LLP, a national law firm with recognized experts on the Affordable Care Act.  Contact Peter Marathas or Stacy Barrow at [email protected] or [email protected]

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