So far in this series, we’ve seen how an employee’s LinkedIn profile can (at least arguably) constitute evidence of the following:
- the existence of an integrated enterprise or successor-entity status;
- the existence of an agency relationship;
- misappropriation of trade secrets.
In this post, we’ll look at the potential implications of a former employee’s inaccurate LinkedIn profile.
In Asanov v. Legeido, a former employee posted, inaccurately, on his LinkedIn profile that he was the owner of the company by which he was previously employed. The company alleged that the employee posted the inaccurate information in his profile to help his job search. The company filed suit against the former employee alleging trademark infringement and intentional interference with its prospective business relations.
No. 3:07-1288, 2008 WL 481426, at *3 (M.D. Tenn. Oct. 31, 2008).
Now comes the really important question–what’s an employer to do? There are two different problems to address. First, the current employee who inaccurately states his job title on his LinkedIn profile (i.e., VP of Sales, instead of Inside Sales Manager). Second, there’s the former employee whose LinkedIn profile describes his job duties and/or title held while employed by you as different (and, presumably, “better”), than they actually were. Here are some thoughts on both problems.
The Current Employee
In the event that you discover that a current employee has slightly “enhanced” his job title or responsibilities in his LinkedIn profile, handle it in exactly the same way you would handle a “offline” problem (as opposed to an online one).
In other words, put aside for a minute the context–a professional social-networking site. And turn, instead, to the real problem. The real problem is that you’ve got an employee telling lies. It’s irrelevant that the lie is being told in cyberspace.
So what would you do if he spoke the lie instead of posting it? It almost certainly depends. You may not care one bit. Fine. You may care a lot, particularly because it relates to his employment and, as we’ve seen in the past several posts–your employee’s LinkedIn posts can be used against you.
The answer, then, is simple–deal with it in exactly the same way you would deal with it had you been told that he made the misstatement at a local ball game or at lunch with clients.
The Former Employee
This is more difficult to deal with only because the employee is no longer within your “control;” in other words, you no longer have the leverage of termination or discipline since he no longer works with you.
The first step probably is to contact the employee directly and ask that he correct the inaccuracy. If he refuses or fails to comply, you may want to involve legal counsel, depending on the nature of the misrepresentation.
One preventative step to consider is whether you want to address the issue at the exit interview or in a post-termination letter. In other words, it may be wise to “gently remind” your recently separated employees to change their online social-networking profiles to reflect the change.
The next question, then, is whether you should be monitoring the profiles of those individuals. For employees who worked in sales or other direct-client positions, it may not be a bad idea. Of course, it means one more commitment of your valuable time but, for certain positions, it could help to prevent a number of potential problems.
See also these prior, related posts:
LinkedIn Lessons for Employers: Part 1 (Integrated-Enterprise Status)
LinkedIn Lessons for Employers: Part 2 (Successor Liability)
LinkedIn Lessons for Employers: Part 3 (Agency Liability)
LinkedIn Lessons for Employers: Part 4 (Trade Secrets)