The majority of employees know that giving verbal references on behalf of current or former colleagues is likely to be a breach of their employer’s reference policy. Usually any request for a reference from a prospective employer should be referred to HR. Over the years, employers have become more aware that they can be sued, for example for negligent misstatement, where the reference provided is not true, fair and accurate. This has led to the common use of the ubiquitous reference which merely states an employee’s job title and dates of employment and, of course, has limited value. Consequently, prospective employers will naturally turn to other sources to obtain information on a candidate’s background.

In this age of social media, the line between our professional and personal lives is becoming increasingly blurred. The question often arises in our training sessions, does endorsing or recommending colleagues on LinkedIn amount to a reference? Could this land an employer in potential hot water? The short answer to this question is “yes”. Most of us appear on LinkedIn in our professional capacity and are strongly associated with what we do and who we do it for.  Where we are recommending or endorsing someone, this is usually because we have had a working relationship with them. If a prospective employer then relies on this recommendation or endorsement, and it is not true, fair or accurate, then potentially the employer can be held liable for the information given by their employee.

This issue has recently been brought into sharp focus by current litigation n the USA. LinkedIn members are able to upgrade their accounts, on payment of a fee, to become premium members. A key feature of this upgrade is the ‘Reference Search’ which allows prospective employers to generate a list of people among its own network who have worked at the same organization as the jobseeker and at the same time. The employer can then directly contact anyone on the list, without notifying the candidate, and request a reference.

Four individuals are suing LinkedIn in a class action lawsuit (Sweet v LinkedIn) on the basis that this feature is illegal and does not protect those people unfairly denied employment. In Sweet’s case, she alleges that she was informed by a hospitality company that it had decided to hire her for a job she had applied for on LinkedIn. Shortly after, the company informed Sweet it had changed its mind. When Sweet asked why the offer had been withdrawn, the company said it made its decision based on a set of references Sweet had not provided herself . They had used the Reference Search feature and contacted referees without asking her permission or informing her about it.  For a fuller article, see the New York Times

The danger with the Reference Search feature is that prospective employers are given a list of individuals who may not have worked closely with the employee at all, may have exaggerated their work history or be an unreliable source. Despite this, what they say can make the difference between an employee getting hired or not. Using the same rationale, liability may potentially lie with the employer of the referee if the reference they give is not true, fair and accurate. Employers must ensure that they update their social media policy and any reference policy to make very clear the role of LinkedIn and references.

Written by Kalpana Murthy