LinkedIn, a popular social networking site, enables users to "recommend" other users with whom they've worked or done business. Not a bad idea, really. In theory, a recommendation could improve the legitimacy or credibility of a user, even making the user more desirable to potential clients or employers--the basic premise of the professional-networking site. So why, then, have commentators suddenly taken up the issue in protest? Even the ABA Journal warns against recommendations, suggesting that employers are best advised to avoid them altogether.
I am of the opinion that this new story is nothing more than propaganda. I don't think there's much to the theory at all. But, to be fair, let's look at it more closely.
What's the potential harm, according to those who caution against permitting managers to recommend an employee?
Well, they say that a positive recommendation could be detrimental to the employer in a later lawsuit brought by the recipient of the recommendation. If the employer claimed to terminate an employee due to performance, a positive recommendation would seem to contradict that claim. The contradiction could act as pretext evidence, tending to show that the employer's proffered reason (poor performance), was a mere pretext for a discriminatory reason for the termination.
Sounds legitimate to me. Indeed, if a supervisor tells an employee how wonderful he or she is all the while thinking terrible things about the quality of the employee's work product or habits, then there is likely going to be a contradiction between the reason the supervisor tells the employee he or she is being fired and the real reason. Or not. Maybe the supervisor, who is too chicken to be upfront and honest with the employee requesting a recommendation to just come out and say, "You know, Bob, I'm going to have to pass. I don't think I could write a recommendation for you because you haven't been a very good performer while you've worked for me."
Instead, the supervisor chickens out and says, "Uh, sure, Bob. I'd be glad to write a recommendation for you. Right after I get back from lunch." He then proceeds to write a "recommendation" that is pretty bland, entirely generic, and, to most people, having nothing to do with the specific individual. Good for the wimpy supervisor! If it's a "positive" recommendation that is purely vanilla standard issue, then no harm done.
But what about the linguist supervisor who loves to play wordsmith any chance he gets and who pens a lovely recommendation filled with gloriously specific adjectives and adverbs? Then it may be a little trickier, right? Well, that depends. Does the junior Shakespeare write the same wordy recommendations for everyone or did he reserve his poetry for this one individual?
Even if the employee who later sues is the only lucky recipient of this supervisor's digital words of praise, the realities of modern-day life--including our online lives--are not simply ignored by the courts. Just because the law has not caught up with the constantly changing dynamics of social media doesn't mean that it has turned a blind eye to it, either. The courts and juries recognize that the fact that you "friend" someone on Facebook or "recommend" someone on LinkedIn is a far cry to an actual off-line friendship or analogue reference letter.
Don't believe me? Just ask the court!
Eastern District of Pennsylvania, which addressed the plaintiff's suggestion that some of the individual defendants' online connections with one another constituted evidence that they were acting in concert to solicit proxies and vote shares to gain control of the company in violation of the Exchange Act. Here's how the court responded to this "evidence:
For purposes of this litigation, the Court assigns no significance to the Facebook "friends" reference. Facebook reportedly has more than 200 million active users, and the average user has 120 "friends" on the site. The fastest growing demographic is those [users] 35 years old and older. Facebook Pressroom. (citation omitted). Regardless of what Facebook's apparent popularity or usefulness may say about the nature of 21st century communications and relationships, the site's designers' selections of icons or labels offer no substance to this dispute. Indeed, the Court notes that electronically connected "friends" are not among the litany of relationships targeted by the Exchange Act or the regulations issued pursuant to the statute. Indeed, "friendships" on Facebook may be as fleeting as the flick of a delete button.
Quigley Corp. v. Karkus, No. 09-1725, 2009 U.S. Dist. LEXIS 41296, at *16, n.3 (E.D. Pa. May 19, 2009).
Exactly! The court's decision merely recognizes what everyone already knows--"relationships" are not evidenced by a simple online recommendation made on a one-time basis, especially if solicited by its recipient. So, to the critics out there, relax. The real reason employers should be nervous about managers who write recommendations about employees is that those things take time to create and employers would be wise to make sure the recommendation-writing isn't consuming an inordinate amount of time better spent supervising.
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