Although an employer may want to publically praise an employee, that well-intentioned act may be damaging if the employee later thinks there are reasons to sue their employer for some alleged act of discrimination.
While an employer may view a recommendation on one of the social networking websites as a casual, informal way of congratulating an employee or boosting morale, such a public, widely-circulated display of approval may be misunderstood by an employee as – or used by a good plaintiff's lawyer to convince a jury that it is – a stronger statement of approval than the employer intended. Thus, it is advisable to keep written commentary on an employee's performance to formal reviews and statements in the employee's personnel file. Likewise, employers should avoid any public commentary – good or bad – about former employees and, when authorized by an employee, should only disclose an employee's dates of employment and, if asked for, job title or duties.
For example, an employer might give an employee a positive "Recommendation" on the popular social networking website, LinkedIn1, because the employee is doing well. Nonetheless, the employee's performance subsequently declines, resulting in the employee's termination. However, the decline in performance notwithstanding, the employee may successfully use the public, online positive "Recommendation" as evidence that an employer's stated business reason for terminating the employee was a pretext for illegal discrimination. Indeed, such a "Recommendation" might be enough evidence to defeat summary judgment for the employer, particularly if the "Recommendation" and the termination are reasonably close in time.
Of course, this is not to say that an employer should not reward an employee for a job well done. However, to minimize litigation risks, such acknowledgement or reward should be internal and, unless done in a formal review, oral. As many employers facing discrimination and harassment lawsuits can attest, the saying that "no good deed goes unpunished" is too often the case in litigation.
If you have any further questions, please contact Phil Jones at 214.953.5921 or pjones@jw.com or Lauren Mutti at 214.953.5858 or lmutti@jw.com.
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"Lawyers warn employers against giving glowing reviews on LinkedIn," National Law Journal, Tresa Baldas, July 6, 2009.
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