Employment Lawyers Warn Against Glowing Reviews on LinkedIn
Corporate employment lawyers can be real buzzkills. I'm reminded of the early days of the Internet when the corporate types were warning all us lawyers to take down our websites because they crossed state lines and therefore constituted the unlicensed practice of law in other states. Now, when everyone is hot on social networking through sites such as LinkedIn, the employment lawyers warn of dire consequences if employers post nice comments about their workers.
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You see, when an employee is terminated and a lawyer is looking for a way to claim it was wrongful, they look first to the job evaluations and any awards and accolades. If it can be shown that the employee walked on water, then obviously there was no reason to fire the employee and the termination must have been based on some nefarious reason, such as discrimination.
Sadly, a company's compassion can get it in trouble. A company is forced to terminate an employee due to downsizing, so to give his job search a little boost it creates a recommendation for the employee's LinkedIn profile. An employment lawyer will spin that by arguing that at the very moment the employee was being terminated, the company was saying glowing things about him. When interviewed by Law.com, Philadelphia lawyer Carlyn Plump had this to say about that:
"Just don't do it," Plump said. "Generally, my advice is that I think employers are often better served by merely stating dates of employment, positions with the company and salary, and staying away from much more because there are so many potential ramifications if they say something." She added: "If they say something negative, there could be a lawsuit. If they say something positive, there could be a lawsuit." The entire Law.com article can be found here.
My philosophy? It's not all about avoiding lawsuits. Employers should not be fearful to heap some praise on good and faithful employees just because others file frivolous suits. In any event, for an unfortunate number of plaintiff's attorneys, wrongful termination actions are a form of legalized extortion. They will sue regardless of the merits of the case, hoping for a "cost-of-defense" settlement, and the fact that you said something nice about the employee on LinkedIn will not be the deciding factor.
Top Five Employee Suits
The EEOC recently identified the five most commonly filed employee suits, which are:
sex discrimination and harassment (30.1 percent);
retaliation (22.2 percent);
race discrimination (13.5 percent);
disability discrimination (12.8 percent); and
age discrimination (8.2 percent).
Sadly, many such cases are fomented by plaintiffs’ attorneys who don’t properly advise their clients. Never mind that in a huge number of cases there is not a scintilla of evidence that the termination was based on discrimination, it is enough that the employee belonged to a protected class. In most cases the employer ponies up some cost of defense settlement amount to avoid the uncertainty of trial.
Thus, no one can advise you how to keep your employees from pursuing legal action, but my first post on this site still remains solid advice on how to ultimately prevail if you decide to go the distance.
Deviant Employees Protected from Termination
As you know, Megan's Law set up a website that lists registered sex offenders. Before extending an offer of employment, one might think that checking that website would be a quick way to make sure a sex offender is not being hired, especially if the job involves contact with children. One would be wrong.
California is an at-will employment state, meaning that employers can terminate employees for any reason or no reason at all. Although there are statutory exceptions prohibiting employers from taking adverse employment action on the basis of race, gender, and other protected groups, a loophole in Megan’s Law serves to make sex offenders a protected group giving them rights that other employees do not have.
Sex offenders are filing claims for wrongful termination, utilizing Megan’s Law as the legal grounds to secure and retain employment. The Megan’s Law Statute, set forth in California Penal Code Section 290.46, states that a person is authorized to use information disclosed pursuant to the statute -- that a person is a registered sex offender -- "only to protect a person at risk." California Penal Code § 290.46(1). The statute specifically "prohibits, except as authorized to protect a person at risk or pursuant to another provision of law, the use of any information that is disclosed through the statute for purposed related to any of the following:
(A) Health insurance.
(B) Insurance.
(C) Loans.
(D) Credit.
(E) Employment.
(F) Education, scholarships, or fellowships.
(G) Housing or accommodations.
(H) Benefits, privileges, or services provided by any business
establishment. (California Penal Code § 290.46(2)(A-H).
In other words, California employers may not discriminate in employment of an employee on the basis of his or her status as a registered sex offender, if such status is discovered through the Megan’s Law website, unless it is to protect a person at risk or pursuant to some other provision of law. One such provision of law is Labor Code section 432.7, which addresses what questions an employer can ask an employment applicant. Labor Code section 432.7 allows an employer to ask and use the fact of a "conviction" in determining any condition of employment; however, legal practice guides have interpreted it to apply only to hiring. As such, California employers may discriminate in "hiring" sex offenders if that information comes from a questions about convictions. However, if the employer fails to ask whether the applicant has any convictions, and later discovers through the Megan’s law website that its employee is a registered sex offender, the employer is liable for wrongful termination if it terminates the sex offender employee based on that information.
This serves to put the employer in an unenviable position: it may be held liable for the sex offender employee’s negligent conduct (for instance, if the sex offender employee physically abuses a co-worker) or face a claim by the sex offender employee for wrongful termination if it fires said employee.
Further, it is nonsensical that an employer can learn this information through other sources (i.e. public records search) and legally terminate the employee on that basis, yet is liable if obtained on the Megan’s Law website. I suppose an employment attorney could suggest to clients that they check the Megan website to see if the employee is listed as a sex offender, and if so, then find the same information from some other source so the termination or rejection would not be based on what was found on the Megan site. But that would circumvent the absurd result intended by our fine Legislature that sex offenders receive special protections, and I would never suggest such a thing.
