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Social Media Law


Can employers use social media in the recruitment process and not break the law?

Social Media LawSocial media has changed the way companies source, recruit and select new employees. Not only does it offer another opportunity to connect with candidates, it gives access to personal information that was previously not available in the recruitment process. As an employer, what do you do with this information? There have been numerous articles on how candidates can manage their digital footprint, but what advice is there for employers to navigate these unchartered waters?

A recent article by the HR Compliance Insider explains some of the legal considerations when using Facebook in the recruitment process. First assertion — no, checking applicants on Facebook is not illegal in Canada  as long as the methods don’t violate an applicant’s privacy rights and information gathered doesn’t go against discrimination laws.

These laws stipulate that an individual needs to give consent for the information to be used in the recruitment process. However, consent is not required to collect information that is publicly available, like social media. While there has not been any court cases regarding job applicants, two cases against employees and use of social media have ruled in favour of the employer.

The article also examines Facebook screening and discrimination laws. When collecting information, what is the planned use? Like in the traditional recruitment process, employers are not allowed to consider race, religion, political views or sexual orientation. While some employers might feel confident that prospective applicants may not have proof, internet searches can be traced and shown to be discriminatory. Proving you went to the trouble to access the information demonstrates that it played a role in your decision.

Then how can companies protect themselves when the world of social media is constantly changing and evolving? The best thing to do is write a policy on how the information is collected and used, including a legitimate reason for using Facebook in the hiring process. List specific websites checked, review only information directly relevant to an applicant’s qualification and be aware of how you are accessing the information — in other words, don’t join specific groups or ‘friend’ applicants in order to gain access. Also be consistent in who you check — doing so after an applicant has passed a couple of rounds and/or is under serious consideration is the best approach. Finally, give clear indication that you intend to conduct background checks through Facebook as this offers job seekers fair warning should they have material they choose to remove from their profiles.

Online recruiting will continue to evolve as the tools become more sophisticated and the workforce more internet reliant. If in doubt over laws and policies, contact your lawyer.
[1] As of March 7, 2011

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