Checking a job applicant’s social media

Factoring social media activity in hiring decision

Question: Can an employer use a job applicant's social media activity as a factor in determining whether to hire her? Does the employer need permission from the applicant to look at social media?

Answer: With the advent of social media and online networking sites such as Facebook and LinkedIn, it is easier than ever for employers and recruiters to review job-candidates' online presence when making hiring decisions. This raises new concerns, especially as the use of social media to conduct background checks can provide a potential employer with a range of information previously unavailable during the traditional hiring process.

When recruiting and hiring employees in Ontario, for example, employers must comply with the Human Rights Code. The code prohibits discrimination in employment on the grounds of race, ancestry, place of origin, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status and disability. While not prohibited, the use of social media when making hiring decisions raises a number of risks for employers, especially in relation to the accuracy and collection of information from online networking sites. For example, from the review of a profile picture on Facebook, the potential employer can gain information relating to a candidate's age, family status, sexual orientation, disability or race that is unavailable from a typical resume or job application. If an employment decision is made based on information gleaned from social media, a potential employer can face allegations of discrimination if a candidate alleges that she was screened out of the hiring process based on her online presence.

In order to protect themselves from such claims of discrimination, potential employers should standardize their recruitment processes. This includes determining the specific information they request from candidates and how they receive such information. If employers do chose to utilize social media, it is best to review candidates' online profiles after a face-to-face meeting. Further, where possible, the decision-maker with respect to any particular candidate should not be reviewing a file which sets out the results of social media background checks. Separating these allows the decision to be made without reference to the information from an online search.

There have been recent media reports in both Canada and the United States about employers asking job candidates for their Facebook passwords in order to review their online posts. While a potential employer does not need permission to review public online profiles, both Facebook and the Ontario Human Rights Commission have released statements stating that asking for such passwords violates potential employees' privacy.

Lorenzo Lisi practices employment and labour law with Aird & Berlis LLP in Toronto. Aird & Berlis can be reached at (416) 863-1500 or www.airdberlis.com.

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