Casual References and Endorsements on Social Media

Yesterday’s Advisor featured tips on social media policies from Attorney Jonathan Segal. Today, his tips on casual references and endorsements and friending and unfriending work colleagues.

 

Casual References

Casual references on LinkedIn or other professional social media sites pose legal risks:

• Defamation (if they are negative and untrue).
• Misrepresentation (if they are positive and untrue).
• Evidence of pretext in EEO claim (if you terminate for poor performance but you’ve written a glowing recommendation on LinkedIn).

Segal’s recommendation: Make clear to managers:

• The “no reference” rule applies to social media.
• Potential exceptions, if any, must be approved by HR.

What about “endorsements” on LinkedIn? An endorsement equals a recommendation, says Segal. Plus, there are trade secret considerations. Endorsement is inconsistent with the trade secret status of the identity of the customer or client. Give guidance to sales people on whether and how to seek endorsements, says Segal.

Segal, whose tips came during a wide-ranging session at SHRM’s recent Employment Law and Legislative Conference, is a partner at Duane Morris LLP in the Employment, Labor, Benefits and Immigration Practice Group. He is also the managing principal of the Duane Morris Institute.

Purely Personal Social Media

On purely social media, employees should make clear that their opinions are personal and not on behalf of their employer (for example, in a political blog). Make it explicit that the employee should not refer to the employer by name in the disclaimer, says Segal.

Note, however, that the disclaimer may not be adequate if the individual is publicly associated with the employer.

Ownership

Who owns the social media information? Consider making it clear in your policy that the employer owns content the employee creates using company social media platforms—it’s work for hire.

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“Friending” Subordinates/Constituents

Once again, you’re going to find out information you don’t want, information about illegal and other conduct of potential concern. For example:

• Illegal conduct—illicit drug use
• Dangerous—excessive drinking
• Protected status:
  • Religious beliefs
  • Medical treatment
  • Domestic partner

At that point, silence may be seen as condoning illegal or dangerous conduct (but getting involved is potentially problematic too). And, again, knowledge of EEO information may be seen as the basis for an adverse employment action (even when it is not).

“Friending” Subordinates/Constituents

Segal recommends that employers consider training/guidelines/restrictions on “friending” subordinates or others over whom a person has institutional authority.

Unfriending

If you are concerned about the issue of unfriending people at work, Segal recommends  you unfriend all colleagues: “I have made a conscious decision that I won’t friend people at work. I wanted to tell all my colleagues; please do not take offense.”  And, then you unfriend them all.

Linking In with or Following Colleagues

This status has some beneficial aspects, says Segal:

• Mentoring tool—how is the subordinate using social media?
• Retention tool—may show evidence of potential departures (individual or collective)
• Early warning signs of potential bias (social media is form of social inclusion). For example, a man boss linked to seven male subordinates but not the one female subordinate.
• Influence barometer
• Evidence of improper references of employee or endorsements by customers or clients

Employment Policies Apply

Finally, says Segal, be sure that you make clear the application of other employment policies to social media (professional and personal). For example:

• Confidentiality policy
• Harassment policy

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