LinkedIn Will Ultimately Win Its Lawsuit, Says Employment Lawyer David Scher


If you are one of the more than 300,000 users of LinkedIn, the service may have helped you get a job. However, LinkedIn is currently being sued in a proposed class action suit by LinkedIn members who allege they have been injured by its Reference Search feature, offered to premium members. The lawsuit was reported in this Legal Broadcast Network report. Attorney David Scher discusses the lawsuit.

David Scher

David Scher

Reference Search works by giving a prospective employer a list of people who have worked with a person the employer is considering hiring. Scher says that information like that is not protected by employment law. “There . . . is nothing wrong with an employer relying on information that’s in the public domain, especially if the potential employee has put that information out there.”

Scher explains that, as long as the employer is not using the information from the Internet in a discriminatory way to make a hiring or firing decision, there is no problem under employment laws. Scher is not inclined to say that the lawsuit is frivolous, as there may be Fair Credit Reporting Act (FCRA) provisions that would provide relief to the plaintiffs. But from the standpoint of employment law, “it’s just a silly lawsuit. . . . Nobody harmed them, and there’s no damage to their reputation.”

Scher believes that LinkedIn will ultimately win this lawsuit. One claim by the plaintiffs is that LinkedIn aggregates this information and makes it available for sale without verifying that the information is accurate and without notifying the individuals involved that the reports on them are being prepared. The plaintiffs assert that this violates the FCRA. Scher says that the issue under the FCRA is notice. Scher opines that the situation in this case is different from a situation, for example, where the information provided relates to medical condition or credit standing. Information like that is not openly available on the Internet.

What’s different here, Scher asserts, is that “these are just data bits that are sitting out there on the web.” Scher suggests that it is impossible to control such information, and it might be detrimental to employers and employees to try.

David L. Scher is a principal in The Employment Law Group. Mr. Scher focuses his practice on qui tam, whistleblower retaliation, and discrimination cases in D.C., Maryland, California, and nationally. He represents federal and corporate whistleblowers who have reported their employer’s wrongdoing. Mr. Scher is a frequent news commentator and has appeared on local news WUSA9 (Montgomery county, Maryland), KSBW8 (Salinas, Monterey, Santa Cruz), as well as ABC World News and on Hearst Television, Inc. stations across the country. Additionally, Mr. Scher has been interviewed by Forbes.com, Politico, and the Washington Post on topics such as employment discrimination, whistleblower retaliation, free speech issues and related employment matters. The Legal Broadcast Network is a featured network of the Sequence Media Group.