Checking social media sites when hiring? Proceed with caution

Law remains unclear and there’s the potential of running afoul of human rights
By Rob Pickell
|Canadian HR Reporter|Last Updated: 03/28/2011

The use of social media is rapidly growing at a time when issues related to privacy are under discussion in all areas of employment — especially background screening. For employers and hiring professionals keen to make the best possible talent selection, while protecting a company’s assets and reputation, it’s logical to assume they should gather as much information as possible about a job candidate.

When candidates have conveniently put their information online and an HR person is already using Facebook, Twitter or LinkedIn to recruit, why not do a quick screening review of candidate information on social networking sites?

The problem is the legal landscape regarding social media has barely begun to be explored. What is clear is there’s a trend toward increased protection of job applicant privacy when it comes to employment background screening.

The issues related to privacy are twofold — compliance with the law and stakeholder trust.

The legal landscape: In some provinces, Canadian privacy legislation places restrictions on the amount and types of information that can be collected by employers. This legislation may place limitations on an employer’s ability to conduct background verifications. In addition, recent changes to the criminal checking policies that use the RCMP database mean a check on an individual will be returned as “clear,” with no details of any kind. If “not clear,” restrictions are placed on the amount of data and use of the data returned.

Stakeholder trust: Stakeholder trust requires personal information be treated with the utmost respect. Alberta, British Columbia and Quebec have privacy legislation that sets out a framework for the collection, use and disclosure of employee personal information. Best practices for companies require, even in provinces where such a framework does not exist, privacy be treated with equal consideration.

“Prudent hiring professionals throughout Canada treat employee personal information as if privacy legislation does apply in their province. This involves collecting and using data obtained during the hiring process in a manner consistent with fair information practices, including meaningful notices about the purposes for collection, obtaining the appropriate consents, collecting only the minimum amount of data reasonably required and putting in place policies for the safeguarding and retention of data,” said Adam Kardash, a partner at Heenan Blaikie law firm in Toronto.

Clearly significant is the question of consent. Both legislation and best practices require employers to give applicants clear notice of the intention to check personal information and receive informed consent from applicants to that process. Very often, the simple input of a name into Google or Facebook has not been contemplated in an employer’s request for consent to conduct background checks.

Also at issue are human rights. Many employers have stringent regulations on the use of materials that might reveal information that could be considered discriminatory. For example, photographs are often removed from resumés and videos are eschewed in hiring because they reveal age, race, potential physical limitations and other qualities that could be used to suggest human rights violations in a hiring decision. If a photo provided for the purpose of employment is questionable, how much more problematic is social media in uncovering a minefield of data, such as political affiliations, social habits or sexual orientation?

Individuals have also filed complaints with privacy regulatory authorities about unnecessary or inappropriate checking. These complaints have occurred in cases where, for example, an employer has used credit checks for jobs with no financial responsibility.

Because the use of social media checking in employment is so fraught with questions, many companies simply do not participate and forbid their hiring professionals to do so. Alternatively, they may only use social media late in the hiring process after a conditional hire has been made and appropriate disclosures and consent received.

Slightly more than one-half of people have no public information available on their social sites that could be checked by a screening company and the rest have almost completely neutral information available (nothing that would flag an adverse action), according to a study of 5,000 applicants’ social sites by HireRight. Less than one per cent were flagged for any reason (such as drugs, pornographic material or violence).

Completely eliminating the use of social media, however, does away with important sources of information posted by a candidate that could positively influence hiring. As a result, some companies restrict the use of social media for screening candidates but continue to use it for sourcing new candidates. While the potential to learn restricted information about a candidate at the sourcing stage is still there, the use of social media as a sourcing tool remains an accepted and increasingly popular practice.

Employers, therefore, have several potential approaches to protecting themselves from legal action when using social media in the hiring process:

• Not accessing social media sites at all for any purpose.

• Accessing social media to find candidates but restricting its use in the screening process.

• Accessing social media in all areas of hiring, while using practices to reduce risk.

It’s very likely legislation and best practices regarding social media screening will become clearer in the future. Meanwhile, it behooves employers to establish policies that protect against any human rights violations or significant invasion of personal privacy. In the event of a claim, a company’s recruiters who have accessed social media information prior to candidate selection may have difficulty proving they were not influenced by it. Until the legal landscape is clear, it’s best for employers to approach social media with caution.

Rob Pickell is senior vice-president of customer solutions at HireRight in Irvine, Cal., a provider of on-demand employment screening solutions. More information can be found at www.hireright.com.

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