Advice for Employers and Employees on Social Media Profile Management when Changing Jobs
Last month, I wrote about some social media issues employees and employers face concerning non-solicitation agreements when an employee leaves one company and joins another. In those situations, the departing employee is typically excited about his or her new job, and is very eager to update social media profiles, and otherwise let clients, customers, contacts, and friends know about the career move. My post provided several tips for employees and employers to handle such situations in light of the ubiquitous non-solicitation provisions many employers require employees to agree to.
This post, however, will focus on the other common situation – when an employee separates from a company but may not have a new job lined up. This situation typically arises due to an involuntary termination, an unexpected layoff, employer closure, or perhaps an unplanned resignation. The employee may not be so eager to update his or her LinkedIn or other profiles to reflect the end of employment. This reluctance might stem from embarrassment about losing a job, or may simply be a strategic choice because getting a new job is typically easier when potential employers believe you are still gainfully employed. There may be other valid reasons as well.
Court Decides Whether Employer Can Force Former Employee To Update LinkedIn Profile
In a recent case in federal court in Kentucky (Jefferson Audio Video Systems, Inc. v. Gunnar Light), however, Jefferson Audio Video Systems, Inc. (“JAVS”) claimed that Gunnar Light (“Light”), a former employee purposefully refused to update his LinkedIn profile for several months, and thus, committed fraudulent misrepresentation, among other things.
Background of JAVS and Light
According to the court, “JAVS is in the business of providing audiovisual equipment and services to create records in court systems. On May 26, 2010, JAVS hired Light as its Manager Director of International Sales.” Things went downhill in March 2011, when Light went to South Africa to attend a sales meeting regarding the sale of approximately 2,500 JAVS systems to South African courts. The court noted that if consummated the sale would result in approximately $20 million in gross revenue for JAVS. During the March 2011 sales meeting, however, “Light allegedly made a number of defamatory statements about JAVS. Specifically, Light allegedly stated, among other things, that: JAVS and its co-owner Jared Green were ‘unorganized;’ ‘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 the fact that JAVS had gotten ‘things going is a miracle.’” The court further found that “the sales negotiations resulted in a $150,000.00 sale, significantly less than what JAVS anticipated,” and “JAVS alleges that Light’s disparaging statements may have been the cause of the dismal sale.” Not surprisingly, according to the court, JAVS fired Light on March 13, 2011.
Light Did Not Update His LinkedIn Profile For Three Months, But Did JAVS Suffer Any Harm?
JAVS alleged that Light falsely represented on LinkedIn that he held the position of JAVS’ International Managing Director well-after Light’s termination date. Despite several requests by JAVS’ attorney to update his profile, Light did not update his profile until June 2011. JAVS claimed that Light was liable for fraudulent misrepresentation. The court, however, disagreed. Applying Kentucky law, the court primarily noted that JAVS failed to properly allege that it, or any third-party customers, suffered any harm/damages as a result of Light’s delay in updating his social media profile. Consequently, JAVS was not entitled to any relief for this claim.
- Figure out these issues ahead of time. This is a concept I’ve written about in previous posts, which you can read through here. Stop using your company’s old and outdated templates for Employee Offer Letters, Employment Contracts, Employee Handbooks, and Separation Agreements. As I’ve written before, make sure to update all these types of documents to define what is expected of the departing employee when employment ends, like who “owns” social media accounts and contacts, for example. There is no reason why a company cannot insert into any of these documents the provision that “Employee agrees to update his/her social media profiles and other public records, as necessary, within five (5) days of his/her separation from the Company.” Of course, you can fill in the time period that makes the most sense for your business, and any other related issues. Before changing these documents, however, your company should consult with an employment attorney.
- Don’t Do Anything. If the harm is minimal or non-existent, companies may choose to do nothing. This probably depends on the position the former employee held. But for most employees, there really is no harm to the company in a short delay in profile updating. In fact, as stated above, by not changing the profile, the employee may have better luck finding new employment, which may ease some resentment the employee may have towards being terminated, and may avoid (or reduce damages in) wrongful termination lawsuits.
Practical Tips For Employees
- Talk With Your Former Employer. Being terminated can be stressful, and thinking about your LinkedIn profile might be the last thing on your mind. If possible, however, try to discuss these issues with your employer. Assuming the employer did not “figure out these issues ahead of time” (see above), then you are not bound by any agreement or policy. If you have been terminated for something like what Mr. Light did, or for gross misconduct, illegal activities, violence/threats, or other serious offenses, then your conversation may not go far. But assuming your employment ended on somewhat better terms, it does not hurt to discuss with your employer that you would like to keep your employment status unchanged until you can find a new position. The company may not agree with you, but you might avoid litigation or inquiries from LinkedIn.
- Update Your Profiles, and Put A Positive Spin. If you prefer to update your profile, or decide that you can/should no longer delay in the update, you can do so and add a positive spin. For example, why not say something like, “Devoted to family time before seeking my new career adventure.” (However, if you are depending upon unemployment compensation, be careful posting something like this). The key is to be positive, and to not say anything bad about your former employer. This way, your profile will no longer have incorrect information, and you can come across as a proactive and healthy potential employee for a new employer.
Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.