The trendy online reference seems flawed – both professionally and legally.
By MARK PEARSON Follow @Journlaw
I see it as an important responsibility of my position as a professor to act as a referee for my former students and colleagues when they are job hunting.
I stopped writing formal general references many years ago because the practice seemed to have lost almost all credibility with employers.
Instead, I now agree to be a ‘referee’ and will only write a formal reference when an employer requests one.
But over the past couple of years I have been getting more requests for ‘recommendations’ from my connections on the social-professional network LinkedIn.
Not wanting to offend my former students and colleagues, I have obliged. Until now. I’ve investigated it further and have just written my final LinkedIn recommendation.
There are all the standard HR reasons why such recommendations are not worth a pinch of salt: they are time consuming, too general, and always glowing.
In 2009, Silicon Valley web strategist Jeremiah Owyang described LinkedIn recommendations as ‘puffery’.
“When I see recommendations on LinkedIn, my alarm goes off,” he blogged.
“I know most are not objective.”
LinkedIn responded to his criticisms on their official blog, with Adam Nash highlighting the benefits that can come from recommendations. He claimed the process could be mutually rewarding for the recommender and recommendee.
Perhaps so, but others have explored the employment law issues of the practice.
Employment attorney Shay Zeemer Hable offers a host of reasons why such references are fraught in labor law – with claims of defamation and unfair dismissal heading the list.
“Every discrimination plaintiff seeks to prove his employer is lying about the reason for the firing,” he writes.
“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.
But the area that concerns me most is defamation.
It’s not because of the risk of defaming the person you are recommending. My understanding is that they have to approve your recommendation before posting it, so I can’t imagine someone letting a disparaging comment slip through.
My concern is more with the impact of a glowing LinkedIn recommendation on the defamation defence you need to protect your harsh comments in the real reference you give later.
What happens if you later contradict your original glowing recommendation in your frank verbal or written advice to the employer when they contact you about this person you have recommended?
Australian law provides a strong qualified privilege defence for the negative job reference -restricted to those who have a genuine legal interest in knowing the your truthful opinion about a prospective employee.
But, as the Legal Services Commission of South Australia explains, it requires the ‘publisher’ – he or she who has written the reference – to have acted in good faith and without malice. You also need to believe in the truth of the material you are providing about the individual.
That could be damaged in a major way if the plaintiff can point to your contradictory glowing recommendation on LinkedIn, particularly if it covers the same aspects of their character.
A court would be hard pressed to find you have acted in good faith if you have offered conflicting versions of your opinion about the employee in separate ‘publications’. Exactly when were you giving your honest opinion?
I might be drawing a long bow here – and perhaps some readers can point me to some cases where this has been tested – but for the moment I certainly won’t be writing any more LinkedIn recommendations, and I will be directing my colleagues and students to this blog to read my reasons.
I’d be interested to hear your views.
© Mark Pearson 2011
Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.