I mentioned in my #SHRM16 wrap-up that I spoke at a pre-conference workshop on social media strategies. This question came up at the workshop and someone else asked it on HR Bartender just a few days ago. It’s obviously a popular topic.
If an employee’s current manager refuses to provide a letter of reference, even if employee is in good standing, is that an EEOC violation?
During the workshop, Jonathan Segal, a partner with the law firm Duane Morris LLP fielded the question, so I asked if he would help us here. And thankfully he said yes. Jonathan has helped us out before, most recently with the final ruling from the U.S. Department of Labor on the changes to the overtime rule in the Fair Labor Standards Act (FLSA.)
I know I don’t have to remind you, but just in case, please remember that Jonathan has a regular full-time job and he’s doing this as a way to give back to the profession. His comments should not be construed as legal advice or as pertaining to any specific factual situations. If you have detailed questions, you should address them directly with your friendly neighborhood labor attorney.
Jonathan, let’s make sure we’re on the same page with this topic. Are reference letters, recommendations, and endorsements considered the same thing? Why or why not? (HRB readers: You’ll see where we’re going with this in a moment.)
[Segal] The label really does not matter. What matters is that you are communicating information about a current or former employee. A substantive letter of reference or affirmative recommendation has more business and legal significance than a ‘LinkedIn’ endorsement or the like. It has more business significance because there is content and for the same reason it has more legal significance.
But even an endorsement can have legal consequences. Here’s an example: Let’s assume you endorse an employee and then later fire him or her for poor performance. Or, worse yet, you endorse an employee after firing him or her for poor performance.
The former employee’s lawyer argues that the reason given for termination—poor performance—is pretext for unlawful discrimination. The inconsistency that supports the argument: the endorsement that does not jive with reason for termination.
Regardless of their performance, are companies or managers obligated to provide reference letters to employees?
[Segal] No, there is no law that makes it illegal to provide an evaluation, whether it be positive, negative or somewhere in between. Of course, what you say may have consequences. For example, giving a positive letter of reference when someone has engaged in misconduct may give rise to a misrepresentation claim if the employee engages in misconduct for the new employer.
But there are risks in not giving them, too. Every former employee is a potential business influencer in the future. Deny a worthy employee of a reference, when he or she is in a position of power with a customer or potential customer, he or she may remember that.
Many employers give only neutral references, simply confirming dates of employment and position held. If an employer wants to get substantive references from others, then they may need to provide substantive references themselves.
Managers need to make sure that they are permitted to give reference letters. Many employers require that only HR provide them. The manager may think I am doing this in my personal capacity. The plaintiffs’ law may think ‘personal liability.’
I’m glad you brought up employee reference policies. Many organizations have them. What should organizations remember when it comes to policies about employee reference letters?
[Segal] Here are a few things to keep in mind:
1. Establish who can give reference letters.
- If only HR can give references, make sure supervisors (and above) know to report any reference requests for them to HR without comment.
- Respond only to written or electronic requests for references and then confirm that the requesting party is who they say they are. Sadly, there are some individuals who seek to obtain references under false pretenses to manufacture a defamation claim. (Editor’s Comment: UGH!)
2. Have as your default position that you ‘ordinarily’ will provide neutral references only.
- When giving a neutral reference, state expressly that it is your general policy to provide neutral references only. That makes it harder for someone to argue there is a negative implication in giving the neutral reference.
- Note: the use of the word ‘general’ to qualify that policy reserves the right to give substantive references in exceptional cases without rubbing up.
3. In exceptional circumstances, you may want to provide a substantive reference, such as: outstandingly strong performance or employee misconduct. When giving substantive reference letters:
- If positive, make clear you give substantive reference only when someone is exceptionally strong and this is one of those cases. This makes it hard for someone to argue that you defamed them by giving them only a neutral reference. It would be an up-hill battle to argue that not saying an employee is exceptionally strong is, by negative implication, defamation.
- If giving a negative reference, focus on specific behaviors and avoid labels that can be attacked. For example, don’t say ‘Mark is dishonest.’ Say instead: ‘Mark did not disclose material information about a deal when asked.” Remember the truth is a defense to a defamation claim and behaviors are easier to prove than labels. Of course, only include behaviors you can prove.
4. Educate supervisors and above that endorsement or recommendation on LinkedIn or other social media is a reference
Speaking of social media, let’s talk about LinkedIn. The platform allows users to “endorse” and “recommend.” What should organizations and individuals understand before providing an endorsement or recommendation on social media?
[Segal] Don’t do it, unless you have approval from your organization. And, HR, approve sparingly. Let’s remember social media is very public. If you want to give a reference, I would consider another forum, such as an old fashion letter. Check Wikipedia for the definition of letter. Here’s why:
Jane gets a neutral reference and accepts it. Then, she sees that Tom got a glowing recommendation on LinkedIn. He deserved it and Jane did not but now it is in Jane’s face. She might allege gender, age, race or other bias, depending on both of their EEO demographics. We can give reference but we need to be savvy on how we do so. Not everything needs to be on social media.
Okay, so forget endorsements/recommendations for a moment. In today’s world of social media, can connecting with someone, liking their postings, or sharing their updates be considered a recommendation or endorsement?
[Segal] Great question. Probably not. But it is better when dealing with a current or former employee to focus on the content and not the person. There is a big difference between ‘great information’ versus ‘wise person.’
Also, include on your Twitter handle something like: Tweet or Retweet does not equal endorsement. It is not a ‘get out of court’ card but helpful. There are other ways to deal with issues on other social media platforms.
If you’re not a current or former employee, there is much less risk in praising an individual. But do so only honestly. Your own credibility suffers if you are not selective in your praise.
My thanks to Jonathan for sharing his knowledge with us. Be sure to follow him on Twitter @Jonathan_HR_Law or read his blog at Duane Morris. I believe Jonathan is spot on with his comment about personal credibility in providing employee reference letters. Not only do individuals need to know their company policy but they should establish their own personal guidelines when it comes to providing references.
Image taken by Sharlyn Lauby after speaking at the Healthcare Human Resources Association Conference in Stillwater, MN3