With 51 percent of employers rejecting candidates based on social media, here’s how to avoid liability from discrimination claims

The majority of employers research prospective employee profiles on social media and online. According to a survey by Sterling:

• 90 percent of employers include some form of social media screening.
• 56 percent of employers found their best candidates via social media
• 51 percent of employers reject candidates based on what they discover in a social media review. [2]

It is this 51 percent rejection rate that is the most troubling. These companies can be open to charges of discrimination if they gather information that is prejudicial or too personal.

Since this practice isn’t usually disclosed to the employee, it rarely makes the news. The liability and risk of litigation are significant enough in Canada to make any employer panic. You need all available information for your review, but is it allowed under privacy guidelines?

In Canada, the main hurdle is basic human rights, which are strongly protected. Lisa Stam of Spring Law explains:

“While social media can be an important and useful recruitment tool, employers need to use it with some caution. A Facebook account, even one with decent privacy settings, might tell an employer if the candidate is a parent if they like to party, where they have gone on vacation, how they lean politically, what concert they went to last week and so on. While some of this information may be harmless, some of it could run an employer into human rights issues.” [2]

The risks can include:

• Complaints of breach of privacy in recruiting
• Misleading information online can lead to poor assessments
• Human rights abuse perception, including prejudice and discrimination

Perception of bias and human rights issues

For example, it is not permitted for a recruiter to ask if the candidate is married with kids. Yet, a check of their Instagram reveals cute baby picks of their children. Or, it might reveal the prospect is married to a same-sex partner. Or divorced. Or, likes to party and get plastered on weekends. Or, any number of bias factors that are prohibited in screening hires.

If you turn down this candidate, a claim could possibly be made of prejudice. You didn’t hire them because you have six children (because you might take many “kids days” off) or because the candidate is a heavy partier who goes out and binges every weekend. Or, they have a pre-existing medical condition that might cost your group insurance too much. Social media will likely tell employers whether the candidate voted Liberal, NDP or Conservative and whether they have strong religious faith, and many other high-risk pieces of information. Even if it wasn’t part of your decision, the fact that you knew could form the basis of a claim.

Lisa Stam continues: “Decisions about whether to hire cannot, under human rights legislation, be made based upon prohibited grounds such as family status, age, religion or other protected characteristics which may be evident from a candidate’s social media presence.”

These are not the business of an employer. Background checks and social media checks can run into human rights or privacy law violations if mismanaged. Even if you turned them down for non-related reasons — such as salary expectation — the disgruntled prospect could still make a case for discrimination if you used social media in background checks.

The problem is, what you see online may not be real — there’ll be exaggerations, social pressure distortions, and out-of-context posts. For example, the candidate might never “swear” at work, only out of politeness, but on Facebook may use profanity. Or, they might share a joke meme which you find offensive.

Peaking into social media accounts is akin to “peaking through the windows” of their home. They might have had a reasonable expectation of privacy — that their social profile was for their friends, not for their prospective employers.

Do you need an outsourced resource for screening, background checks and social media reporting? Contact the HR experts at Pivotal Solutions>>

Legal risks: pre-emptive risk and post-hire liability

You assume liability for any data you collect. Just this month, British Airways was fined CDN$300,000,000 for failing to protect data by the EU. [1] On a smaller scale, if you collect and keep information, you are equally liable.

Even riskier, than storage of data, is handling of social media screening. No area of HR Management or recruiting is as fraught with danger as social media screening. It goes two ways: pre-emptive risk and post-hire risk.

Pre-emptive risk: discrimination claims

Examples of pre-emptive risk include discrimination claims. Even if you didn’t use potentially discriminatory facts in your review, if you had access to race, sexual preference, social behaviours and patterns — you’re wide open for a discrimination claim if you turn that candidate down. In other words, knowing too much is dangerous!

When you visit a candidates social media profiles, it is assumed (yes, in court) that you had an opportunity to learn all of these things about your potential hire. Claiming you didn’t notice or didn’t use that in your screening, may be a weak defence. The best solution to this dilemma is to use a third-party outsource for either HR Management or just social media due diligence. An outsource will only pass on what information is non-discriminatory. You can then claim, like Seargeant Shultz on Hogan’s Heroes (old TV show), “I know nothing.”

Post-hire hiability: negligent hiring

Examples of post-hire liability would include negligent hiring. For instance, if your new hire abuses someone else in the office, usually that abuser is held responsible; however, in the case of an employer who had access to social media information that showed that person had a history of abuse — and still hired that person — a charge of negligent hiring can be made. Again, ignorance is not an acceptable argument legally.

“Ought to have known” and “had access to the information” is all it takes to make this uncomfortable for the employer. And, putting aside the financial risks, think about the morale of the rest of your team — and, especially of the victim — in this scenario. On the other hand, if you can show that you did not read the social media profiles, either because of policy or because you use a third-party outsource, the risk is mitigated.

Solution 1: Outsource the risk

Lawyer Lisa Stam suggests using an outsource may be the best way to shield the company from liability.

“In order to avoid potential human rights issues, employers who do want to conduct social media checks should have the check performed by someone other than the hiring manager. The individual who conducts the review can provide the hiring manager with any pertinent information and keep information that touches on protected grounds to themselves.”

A professional outsourced recruiter, or outsourced HR Manager — such as the expert team at Pivotal — can screen private information out and report only on “permitted” characteristics. For instance, the third-party reviewer would submit a report that does not include private information, such as religion, sexual orientation, race, number of children, and so on. The professional team will only report on what is allowed under the law, and useful to your screening.

There are some grey areas as well. For instance, a review of their Facebook or Linkedin might reveal some anger directed at their previous employer. This isn’t a trait most prospective employers appreciate. Yet, this information could be taken out of context, leading to the potential for human rights claims.

Solution 2: Internal screening and 7 must-dos

Assuming you can’t or won’t outsource this aspect of HR Management, here are some rules to follow to keep you out of trouble.

1. Learn and understand — and comply with — all privacy and labour legislation — this isn’t a small job!
   Inform your candidates that social media profile review is necessary. Do NOT run profiles without their knowledge. If anything worrisome is found, allow them to answer your concerns. If you simply eliminate them, you could be open for a discrimination claim.
2. Ideally, have a separate person in the company fully responsible just for these reviews (if you don’t outsource) so that they can “edit out” potential discriminatory factors before. All personal information (relating to third parties) must also be removed in the reports.
3. Establish a policy that reports on social media that will not include any risk areas: race, sex, age, sexual preference, religion, family information (such as how many children, or that their teenage son was arrested for drunk driving), party habits, and even illegal drug references.
4. Review social media with filters: understand that people exaggerate, even lie, to impress their friends, or make jokes that you may not get.
5. If you come across history that would eliminate them from further consideration — specifically from social media — always give them an opportunity to respond. Have a witness for really troubling issues.
6. Destroy all personal information and identifiable information after the review. Privacy laws do not allow you to retain this information, generally. If you are concerned about litigation, you should retain records sufficient to establish your case, but avoid non-relevant personal information.
7. Have a legal professional review your social screening process.

What if they have no social media profile

Unless you’re a social media company or marketing company, chances are it’s not a job requirement that your prospects understand and use social media. If the candidate has no profile, can you “reject” them because you think they’re not very tech-savvy? The answer is likely no.

Only a quarter of American’s have Twitter accounts. Even fewer have Linkedin. The largest percentage, at 68 percent, may have Facebook.[3] This doesn’t mean these people are not tech-savvy; the reverse might be true.

Do you need an outsourced resource for screening, background checks and social media reporting? Contact the HR experts at Pivotal Solutions through the form below:

NOTES

[1] GDPR: Record British Airways fine shows how data protection legislation is beginning to bite>>
[2] Employment and Human Rights Law in Canada>>
[3] Pew Research: Social Media Fact Sheet>>

[4] Data from CareerBuilder.