Is that job candidate too good to be true? Did he really go to McGill University? Will he call in sick every Monday because of his weekend warrior social life?
When the answers to such questions are only a click away, it can be tempting for employers to do a little cyber digging through a candidate’s social media. But, along with the information gleaned, there are risks to seeking out personal information about a candidate, says Lyndsay Wasser, co-chair of the privacy group at McMillan in Toronto.
Even though Facebook, Twitter and Instagram profiles are out there for the world to see — depending on the person’s privacy settings — searching those profiles could open employers up to legal trouble when it comes to privacy legislation.
“It really depends on jurisdiction, for the most part, because some of the jurisdictions have legislation in place that deals with employee and prospective employee information, and some jurisdictions don’t, so there is a bit of a divide there,” says Wasser.
“But federally, and in Alberta, B.C., Quebec and Manitoba, you do have statutory requirements to worry about. And the issues that tend to come up with social media background checks are the requirements under those statutes firstly to provide notice or get consent when you’re collecting personal information, and that’s often the one that’s easiest to deal with.”
With prospective employees, an employer could just get the consent with the application form or in a conditional offer of employment, or at least provide notice in jurisdictions where that’s all that’s required, such as B.C. and Alberta, she says.
The hardest thing to deal with in regards to social media checks can be all the legislation — where there is legislation — that requires employers to limit the collection of personal information to only what’s reasonable, says Wasser.
“And when you do social media checks, you pull up a vast amount of information and it’s really hard to limit what comes back to you when you start doing Google searches… you end up getting a lot of information that’s not relevant to the person’s application for employment to the job at issue. And once you’ve seen it, you’ve seen it,” she says.
“You’re probably going to, in some way, shape or form, take that into account when you’re deciding whether to offer employment or whether to continue with an offer if you’ve given a conditional offer of employment.”
Another issue with social media checks is legislation in some jurisdictions requires the employer to make sure the information collected is accurate, complete and up to date. But with social media, it may come across a lot of information that is inaccurate, out of date or incomplete, she says.
Beyond the privacy considerations, employers in all jurisdictions also have to take into account human rights law, which prohibits discrimination on the basis of factors such as age, sexual orientation, religion, says Wasser.
“And when you’re doing social media checks, you’re probably going to come up with (that information). When you’re on someone’s Facebook account, you see the marital status, you see their sexual orientation if they’re explicit about that — all sorts of information that, once you have it, is it being taken into account in the hiring decision? And if it’s not, is there the possibility that the employee or the job applicant thinks that it was and uses that as a basis for allegations or a human rights complaint?”
There are a number of different ways to get into legal trouble, but there are also benefits to social media background screening — if it’s done correctly.
“You can find out a lot about how the individual communicates, for example. When you’re looking at someone’s blog or other things they’ve posted on the Internet, you can see, are they a good writer? Do they present themselves professionally?” says Wasser.
“Some employers have been able to discover, based on Internet searches, whether an individual represented their qualifications accurately. Some organizations say they like to look and see if the person is a good fit for the company’s culture, although I think you are taking a risk there too in terms of what are you taking into account when you look at whether they’re a good fit for your culture? Could it overlap with some of the protected grounds under human rights laws?”
There are particular considerations when it comes to millennial candidates, many of whom grew up with social media and share a large amount of personal information online.
Employers should be careful not to assume a candidate is unprofessional or undesirable simply on the basis of a couple of “partying” photos, says Wasser.
“Ultimately, is that relevant to their job? Are they going to be bringing that into the workplace? People might enjoy some drinking activities on the weekends but be perfectly good employees, so they might be unfairly excluded.
“That’s not a legal issue, but you may be losing out on good candidates because you’ve judged them on things that they actually wouldn’t have brought into the workplace.”
In terms of best practices for screening with social media, the first concern is the legislation in your jurisdiction, says Wasser.
“What you need to do is look into whether your organization has any legal limits on whether they can do it or not. So you need to understand, is there legislation that applies to your activities… and what you need to do in order to comply with those,” she says.
“The other important consideration in all jurisdictions is proper training for your hiring managers and your human resources personnel to make sure that they understand their duties under human rights law, and that they’re not taking into account information that they’re not legally allowed to take into account, such as information around sexual orientation — even disability, because alcohol or drug use could raise disability issues if someone has a dependency.
“So you may see this person with hundreds of pictures of themselves out drinking and you may say, ‘Well, we don’t want an alcoholic here.’ Well, if they actually are an alcoholic, dependency on alcohol is a disability — it’s not something you’re supposed to discriminate on.”
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