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Unauthorized Employee Recommendations, References on Social Media May Put Employers at Risk

  • November 4, 2011

Employers are beginning to realize that their employees are sending or receiving recommendations on social media sites, such as LinkedIn, about co-workers’, vendors’, and customers’ work performance or services that are inconsistent with the employer’s policies.  Worse yet, they may even be providing false or fraudulent information.  Employers need to take a hard look at their employees’ recommendations on social media.

For many years, employers have been advised that providing positive or negative references for former employees can be problematic because negative references can often lead to defamation actions.  As for positive references, a number of courts have found employers liable who provided false positive references for former employees that employers knew had committed crimes or engaged in other misconduct.  As a result, many employers today simply provide neutral references for all former employees.

Unsanctioned recommendations appearing on social media sites, therefore, can cause complications for employers.  Take, for instance, an ill-timed positive reference published by a manager on a social media site extolling his former employee’s honesty while, unbeknownst to the manager, the employer was contemplating litigation against the former employee for taking trade secrets or other confidential business information as he was leaving. 

Anonymous recommendations or endorsements by employees also may run afoul of the Federal Trade Commission’s Guidelines on the Use of Endorsements and Testimonials in Advertising, 16 C.F.R. § 255.  For example, employees anonymously endorsing their own company’s products without full disclosure of the relationship may trigger liability.  The Guidelines require not only full disclosure of such relationships, but that employers have procedures to prevent such an endorsement from being made.

To avoid these issues, employers should consider taking several steps.  Employers should amend their written social media or reference policies to address unauthorized employee recommendations and references on social media sites.  Depending upon the circumstances, barring employees from making such references may be appropriate.  However, this is not always practical or prudent for employers who are encouraging employees to promote their businesses through social media.  Under these circumstances, employers may require that employees request authorization from their human resources department or a designated individual before making references or recommendations and make any necessary disclosures.

Simply amending social media and references policies and procedures, however, may be insufficient.  Employers need to be vigilant and proactive.  Appointing suitable personnel and, perhaps, a social media manager to monitor public social media sites to ensure that employees are not violating critical policies is another measure employers should consider.  If the employer is a governmental entity, it must take special care when monitoring so as not to violate an employee’s constitutional right to privacy.  Private employers also should take care not to infringe upon laws protecting employees’ off-duty or protected concerted activities.

Jackson Lewis attorneys are available to discuss this and other workplace issues.

©2011 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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