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Guidelines for using social media when hiring

Social media offers a wealth of information, but there are some rules employers should keep in mind

By Stuart Rudner

The use of social media sites like Facebook in the hiring process continues to cause confusion and controversy.

Over the last couple of weeks, headlines across North America have raised fears of employers demanding that job applicants hand over their Facebook username and password. Or ask them to log in to Facebook right then and there in the interview, so the employer can have full access to the applicant’s account.

In response, Facebook itself released a statement condemning the practice, and recently announced it would “take action to protect the privacy and security of (its) users, whether by engaging policy makers or, where appropriate, by initiating legal action.”

Senators in the United States have also announced they will introduce bills to prohibit the practice.

Many employers I speak with are still concerned it is somehow inappropriate or “illegal” to simply check an applicant’s Facebook page or otherwise research them online. This concern is largely unfounded. There is nothing inherently wrong with accessing publicly available information about a candidate as part of the hiring process.

Frankly, given the wealth of information that is often available from social media sites and other online sources, it is arguably negligent not to do so when an individual or team is tasked with selecting the best applicant for the position.

The issue of requiring usernames and passwords is more complicated. Over the last week or so, a number of experts have weighed in on the subject, with different approaches and conclusions.

My friend and managing editor of

Canadian HR Reporter

, Todd Humber, posted a blog entry entitled 

“It’s time to unfriend social media background checks”

on his Editor’s Blog recently.

While I was initially concerned by the title of his post, as I feared he was advocating an absolute ban on the use of social media, his position, like many others, was that accessing social media comes with some risks, but he also recognized it can be helpful and appropriate.

However, his conclusion was forcing potential employees to hand over user names and passwords is offside. My view is somewhat more moderate: In the vast majority of cases, I do not think there will be a need that will justify such a requirement. However, I recognize there may be situations where an employer can demonstrate it would be appropriate in the hiring process.

I note that while some have argued that requiring an individual’s log in information is like requiring the key to their home, and distinguished such a requirement from merely accessing publicly available information online, courts have recognized there is a diminished expectation of privacy even for posts that are shared only with “friends.”

Those friends are not restricted in any way with respect to the use or reproduction of such information. Furthermore, there are many examples of employers that have disciplined or dismissed employees as a result of misconduct discovered via supposedly private Facebook posts. All social media users should recognize those posts are not “private” in the traditional sense of the word.

With respect to social media checks generally, I offer the following guidelines — there is nothing wrong with accessing publicly available information about a candidate, but any information should be used cautiously:

•employers should take steps to ensure it relates to the applicant and not someone with a similar name

•employers should take steps to ensure it is accurate

•employers should take what they find with a grain of salt — one picture of an applicant with a beer in their hand should not disqualify them — but patterns of conduct can be relevant

•the person making the hiring decision should not be the person who performs the online search.

The reason for the last point is that online sources can be filled with potentially “dangerous” information. The best advice for some time has been that those in charge of hiring should not obtain any more information than they reasonably need in order to make the hiring decision.

They should not ask questions that might elicit information about protected grounds (such as age, disability or family status), as they want to avoid any inference the decision was based upon such information.

Similarly, while online sources can contain a wealth of information, much of it will be irrelevant and some of it may be inappropriate. I advise clients to ensure the person making the hiring decision is not the person who performs the online search.

That way, the person researching the applicant online can filter out any irrelevant or inappropriate information and prepare a summary of relevant material. If this is done properly, the company can credibly show it was not privy to inappropriate information, and any decision not to hire was not based upon a protected ground.

Stuart Rudner is a partner with Miller Thomson LLP in Ontario, specializing in employment law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at (905) 415-6767 or srudner@millerthomson.com. You can also follow him on Twitter @CanadianHRLaw, join his Canadian Employment Law Group on LinkedIn, and connect with him on Google+.

Stuart Rudner

Stuart Rudner, Employment Lawyer and MediatorStuart Rudner is the founder of Rudner Law (RudnerLaw.ca), a firm specializing in employment law and alternative dispute resolution. He is a senior employment lawyer, mediator and arbitrator. He can be reached at stuart@rudnerlaw.ca, (416) 864-8500 or (905) 209-6999, and you can follow on Twitter @RudnerLaw.
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