Is there an expectation of privacy on Social Media? If we assume not, why is there any risk to prospective employers — especially in Canada — of liability or discrimination claims? Many companies remain “nervous” about the compliance risks with regard to social media candidate review.
In Canada, especially, privacy and human rights laws are stringent and clear. There’s no doubt, social media screening can be vital today — but the risks of angry claims from rejected candidates rises to a different level if they know you reviewed their social media history.
Two reasons to review social media: character and reputation
There are only two good reasons to review a candidates social media profile, but both have risks:
- Reputation screening: for example, identifying unlawful, racist, intolerant behaviours
- Character screening: this is riskier because there’s more interpretation involved. Character screening mainly looks for negative behaviours.
The risk factors for both are the same: privacy and human rights laws restrict how this information can be used. Here, it’s important to be careful of setting goals for the screener such as “capturing activity online that is incriminating.” Language is critical to avoiding claims. It’s a very, very fine line between obtaining valuable information and reporting on private, personal information.
Do-it-yourself social screening is perilous
For this reason, do-it-yourself or in-house social media screening is perilous for most employers. Even if you reject a candidate for legitimate reasons, social media review can open you to claims of racial, sexual or behavioural discrimination. If you had access to the information, the rejected employee could consider legal or human rights adjudication. Using an outsource, who report only on relevant factors and strictly follow Canadian privacy and human rights laws — for example, not including information such as marital status, sexual preferences or religious affiliation in their report to employers — should shield against any action or liability.
Putting aside security clearances for sensitive jobs — such as police and intelligence communities — for most employment positions, employers should consider outsourcing the social media review. It’s just common sense to gather this information on your short-listed candidates. (Even for national security and/or police purposes, organizations still use third-party review: for example, the RCMP might conduct an investigation for an Ontario Provincial Police candidate.)
A professional HR Management team or Permanent Recruiter will comply with the rules, only reporting on relevant information. (It’s the same principle, as the RCMP reviewing OPP candidates.)
The eight rules of engagement
Whether you self-help or outsource, the rules are common sense, but non-negotiable:
- Personal information, such as marital status and religious affiliation should NOT be reviewed or reported. This can include hobbies (unless the candidate discloses), social habits — for example, an all-night bender and subsequent hangover may be posted on Facebook. Most definitely, sex, sexual preference, religion, marital status (including divorces) are off-limits.
- Avoid reporting language that appears to conclude a personality profile from a social media review. Personalities demonstrated on social media are often contrived. There are better tests for personality if this is important — and if it is allowed by law.
- Avoid age discrimination by not discussing in the report, language such as “a Millennial attitude to social media posts” and other indicators of generational or age identifiers.
- Employers must fully comply (not partially) with all privacy, labour and human rights rules and laws. In Ontario there are a LOT of them, making outsource the lowest risk path to a good review.
- Criteria to be reviewed should be fully disclosed — first to the candidate — but equally to the outsource team doing your review. Knowing what information you’ll use/need will prevent reporting on things that could be more perilous. For example, you may reject a candidate based on education, but because your social media review unnecessarily included an overview of social activity, you can be liable for claims.
- For safety, ask for reporting only on key, essential factors. Avoid “full reports” that include everything there is to know. Even if you don’t use it, you had the information available to you. If you handle this in-house, the availability is provable in court.
Standards of review: it is critical to have the same criteria for every candidate. Asking for “extra” information on one candidate is risky.
- Information should be deleted as soon as the decision is made, and most notably for candidates not recruited. Canadian privacy laws are merciless.
- Factual analysis: social media information is generally the least credible. Artificial personas and non-factual information are statistically familiar on social media.