Legal eye: Beware illegal use of social media in hiring

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Social media is a great HR tool for screening current and potential employees, but therein lie some untested legal pitfalls. Some simple steps can make sure you avoid accusations of bias.

“It’s becoming more and more common but there is still a lot of confusion about what is allowed or not allowed,” says Stuart Rudner, a partner in Miller Thomson's Labour & Employment Law Group (pictured). “What I tell our clients is there is nothing wrong with using online sources. Given that that information is out there it is arguably negligent not to access it. But if you’re going to do an online search you have to do it properly and carefully.”

It was important to be consistent and look at the same sources for all candidates. Rudner also suggests separating the decision maker from the social screening process to avoid allegations of discrimination.

“It’s easy to find out on Facebook that somebody is of a certain background, or a certain age or has a disability. As the person doing the hiring you don’t want to have that information."

Even if the HR person has appropriate reasons for not hiring that person, the candidate can still accuse the hirer of making that decision based on knowledge of age, illness or background, Rudner says. Having another person do the research and prepare a report of only relevant information meant the company could prove that the decision maker did not have the details in question.

It is also worth following current employees on Facebook and Twitter as a way of monitoring what is being said about your company, and to find out how truthful they’re being, Rudner says.

“One reason is to make sure they’re not posting anything that is detrimental to the organization because if they are the company can discipline them up to and including termination in the right circumstances,” Rudner says.

Anecdotal stories about employees calling in sick on a Friday and being caught out by posting photos of their weekend trip were common, but other underhand behaviours could also be caught online.

“A few years ago we had a client who had an employee on the road servicing clients. He would often seem to disappear for long periods of time and what his manager, who was friends with him on Facebook, found was his Facebook ad for his own company providing exactly the same services as their company.

“He was using their truck, their equipment and their time and competing against them.”

While there have been concerns based on privacy, if the employee has accepted a colleague as a friend then the information was considered public.

“There is nothing inherently wrong with accessing what is public information. They should keep in mind that their boss or colleague is their Facebook friend,” says Rudner.

Recent news stories suggest some companies are requesting applicants give them passwords or access to social media accounts, but employers were unlikely to be able to force workers to give the company more access than they wanted.

“Everything is going to be fact-specific but generally speaking I don’t know that employers can go that far and require that access,” Rudner says.

-By Caitlin Nobes

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