Let’s get Real and Transparent

People regularly post information about themselves, their lives, and their opinions on social networks such as Facebook and Twitter. That information may be publicly available, but last month Newfoundland and Labrador’s Information and Privacy Commissioner made it clear that this doesn’t mean on-line findings can be used by public sector employers to make hiring decisions. This perspective and the related guidelines released by the commissioner essentially tell employers to avoid using social media to perform background checks – advice that seems counter to the common practice of checking someone’s on-line reputation. In fact, according to a 2017 CareerBuilder poll, 70% of employers use social media to screen candidates before hiring. Social media sites have made it a lot easier for employers to find out information about potential employees that might not come up in a job interview.

The collection, handling, and use of information by public bodies is governed by the province’s Access to Information and Protection of Privacy Act. That act, similar to provincial access and privacy statutes across the country, requires that personal information be collected directly from the individuals a public body is dealing with, with the exception of specified circumstances, for example, if another method of collection is authorized by the individual. Collecting information about job candidates from their social media sites is an indirect collection.

The guidance document outlines that even if you do have consent for such indirect collection, there are dangers associated with making hiring decisions based on potentially unreliable or inaccurate information. An employer may also be collecting more information than is needed to accomplish appropriate candidate screening, including information about third parties. But at the end of the day, isn’t it up to individuals to post cautiously and consider the longer term implications of the content that defines them or others included in their posts? And isn’t it really up to each of us to carefully consider our privacy settings on the platforms we are using?

The guidance document further states: “Public bodies can indirectly collect information via social media to identify potential instances of non-compliance. Public body employees authorize the indirect collection of this information by accepting employment according to its terms and conditions, including social medial policies if notified at the time of hire. Arguably, collection of this personal information relates directly to and is necessary for activities of public bodies”.

In the same vein, why not tell candidates that you conduct social media checks and build that right into a readily available social media use policy, effectively seeking authorization? That is, employers should clearly emphasize that they will engage in social media checks and that this is a condition for application. If a candidate does not want this, they simply shouldn’t be applying for that job. In my view one’s on-line reputation could be important to determining if an individual is a good fit for representing an organization or government institution. As has been outlined by the Federal Privacy Commissioner in the past, if there is full transparency that social media sites will be checked as part of the hiring process, this practice is certainly appropriate. Documenting the decision making process and information relied upon internally is also important for due diligence and risk management.

I expect organizations ‘Google’ my own name when determining if I’m someone they want to engage to provide professional services. The Internet provides an additional source of information and opinions that we can’t deny but must reference cautiously to avoid inappropriate discrimination. We all play our role in being accountable for our on-line activity – whether content providers or content seekers. But to suggest that an organization shouldn’t turn to the Internet to seek that content when making hiring decisions, be it public or private sector, is in my view archaic and out of touch with reality.

For assistance with using social media responsibly, or for help with your social media use policy, contact PRIVATECH.