A positive reference from your ex-boss could be tougher to get now that lawyers are realizing that LinkedIn comments could consist grounds for a wrongful termination lawsuit.
Let’s try that again: Let’s say someone is asked to leave her company and she asks one of her former managers for a reference. Let’s say the manager doesn’t know the full details of why Jane Doe left the company, but knows that she was a pretty good employee, so he writes a nice note for Jane’s LinkedIn profile.
Jane can now use that good reference as evidence that she was fired wrongly.
It’s a legal nightmare for some, including Shay Zeemer Hable, a labor and employment attorney, writing about the issue in Workforce. But for laid-off employees who just want to get on with their lives, they may not understand why they can’t get any help from their former bosses.
Any HR professional unfortunate enough to have lived through a discrimination lawsuit knows that the crux of a discrimination claim focuses on whether the employee can prove that the company’s reason for termination was a pretext, which, put bluntly, means that every discrimination plaintiff seeks to prove his employer is lying about the reason for the firing. As a result, savvy attorneys will search the Internet for any comment that is inconsistent with the company’s official message about the reason for the termination. For example: A plaintiff’s attorney representing Joe White, who was terminated for poor performance, will consider it pay dirt if she finds a LinkedIn recommendation by his manager stating that Joe White was the best employee he ever had.
Hable suggests one workaround, which is to make it clear that managers can make personal references, rather than work-related ones. A reference that said “Joe has worked for me for 10 years. Most recently, we worked on the strategic pricing project and Joe came up with the BuyLo initiative that increased revenue by 10 percent” could be problematic, but “I have known Joe for 10 years. I have observed that he is energetic, enthusiastic and innovative” would probably be OK.
But is this really what we’re coming to? It used to be, “If you can’t say anything nice, don’t say anything at all.” Now it’s “Don’t say anything at all.”