In today's world of social media, we know that employees live online. With LinkedIn, this includes having a living resume for anyone with a LinkedIn account to see. The up-to-date part, or rather how up-to-date someone's LinkedIn profile (or resume) is, has become somewhat of a concern for employers, specifically as it pertains to an employer's former employees. The recent case of Jefferson Audio Video Sys. Inc. v. Light (W.D. Ky. May 8, 2013) demonstrates how the updating of a LinkedIn profile can become a concern for employers, particularly as it pertains to an employer's former employees.
Here is the situation: An employee leaves a company for whatever reason yet fails to update his or her LinkedIn profile. To anyone who views the individual's profile or searches the company's name, the individual appears to be a current employee.
In Jefferson, the employer Jefferson Audio Video Systems, Inc. ("Jefferson") sued former employee Gunnar Light ("Light") in part because he said some pretty awful things about the company to a customer while employed and, in part, because he would not update his LinkedIn profile. So, how did that turn out for the employer? Not so well.
Jefferson hired Light as a Sales Manager. During a sales meeting with a customer, Light allegedly made some less-than-flattering statements about the company to the customer, including comments that Jefferson was "unorganized," that "they don't know what's going on," "they've made a mess of things," "I unfortunately am stuck with this Company that is very dysfunctional," and suggested that the fact that Jefferson had a business at all was "a miracle." While Light made the sale despite his employer bashing, the sale was for less than Jefferson had anticipated. Not surprisingly, when Jefferson became aware of Light's statements about the company, it fired him.
Jefferson sued Light alleging numerous state law claims including: defamation, tortious interference, breach of fiduciary duty, trade, disparagement, fraudulent misrepresentation, and breach of contract. Light moved to throw out Jefferson's lawsuit, and the court did.
Light’s failure to update his LinkedIn profile provided the basis for Jefferson's claim for fraudulent misrepresentation. Jefferson claimed that for several months following Light's May 9, 2011 termination, he "falsely represented on social media outlets, such as LinkedIn, that he held the position as ... International Managing Director after his date of termination." According to the opinion, Jefferson had contacted Light twice in May 2011 to request that he update his social media to indicate that he was not a current employee of Jefferson. Light responded that "he intended to promptly update his employment profile," but he did not change his information until after he received a third request in June, in which the company said it would file a formal complaint with LinkedIn.
The court found that Jefferson failed to plead the claim with the required particularity because Jefferson failed to "indicate it reasonably relied on Light's misrepresentation" and admitted as much in its response brief that it was "not asserting that it a was defrauded by Light but, instead, is making a claim that Light's fraudulent misrepresentation to the world damaged [Jefferson]." Because Jefferson failed to assert facts that it reasonably relied on Light's misrepresentation itself, a requirement to the claim, the court found the claim lacking and threw it out.
The company also attempted to argue that it was somehow advocating that Light committed fraud on potential third-party customers, but the court did not buy that argument either.
[C]iting no case law in support of its argument, [Jefferson] urges this Court to expand the scope of an actionable fraud claim by permitting it to assert a claim based upon third party rights. [Jefferson] wants to stand in the place of those customers with reference to the issues of intentional misrepresentation and reliance upon the same. While novel in its genesis, Kentucky courts have not recognized such an argument."
As an aside, the court's decision throwing out the employer's defamation claims is also instructive for employers because the court did a nice job of outlining what constitutes defamation in this setting and what does not. Here, the court tossed the employer’s defamation claims because it found Light's statement to be "protected expressions of opinion," which are not actionable as they are expressions that merely voice "subjective thought". So employers a caution: Statements of opinion, rather than fact, typically won’t provide a basis for a defamation claim.
Takeaways: Employers, while it is understandable that you do not want a terminated former employee holding out that he or she still works for you, it may not be worth your time to try to force the former employee to update their social medial through the courts. It might be more worthwhile to contact LinkedIn who may take up the issue with the user based on their user terms and conditions. In any case, if the saying "it's easier to find a job when you already have a job" is true, allowing a former employee to keep a "currently employed" status might allow your former employee to get a new job faster. The upside for you, it will stop unemployment payments to the former employee and, if the employee had a wrongful termination claim against you, it will stop any potential back pay from continuing to accrue. Another thought, you may include in the employee's offer letter and/or separation agreement a provision where the employee agrees to update all social media to reflect that he or she is no longer employed with the company no later than three days (or whatever you deem reasonable) after separation of employment for whatever reason.