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Facebook and employees’ rights


You’ve probably heard by now that some employers in the United States have come up with the idea of asking prospective employees for their Facebook passwords so they can take a closer look at what these candidates are all about. Is it legal? Is it ethical? Is it fair? I don’t think we’ll know the answer to these questions soon.

One employer—the Maryland State Department of Corrections—sought access to candidates’ private profiles in order to find out if they had any criminal activity in their past that would disqualify them from jobs. According to Mashable, the employer has since modified the practice to scanning the candidate’s profile with the person present.

I can’t speak for the law in the US, but think of the implications here. Employers are not allowed to make hiring decisions based on a person’s age, race/ethnicity, religion, sex/gender, and other factors, such as appearance and relationships, to various degrees. Employers can glean much or all of this information from a person’s Facebook profile, often without even needing password access. In other words, employers in Canada should be careful before they consider looking at a person’s public Facebook page, let alone seeking access to their private information.

Then there are the privacy issues, which we’ve discussed at length on First Reference Talks.

At the same time, there is LinkedIn, which is a social network specifically designed to present personal information that is relevant to prospective employers. It is a dynamic online résumé. Presumably, simply by creating a profile, users have offered implied consent to view and to some extent use information they post on LinkedIn, because the entire purpose of the site is public networking, as opposed to Facebook, which users might want to use publicly or privately. Employers that want to look closer at a candidate should probably start there, possibly following links to other personal accounts or blogs from there, rather than diving into a broad Internet search. But LinkedIn’s implied consent still doesn’t mean that employers may use protected information (race, sex, religion, etc.) to make hiring decisions.

A creative company has come up with another way to get a better look at a candidate: the social interview. Yosie discussed the concept a few weeks ago, and it is very simple. With permission, the employer asks questions on the candidate’s Facebook wall, hoping to get responses from the candidate’s friends and contacts that will offer pertinent details about the candidate. To me, this approach is basically like checking a candidate’s character references. However, the same concerns about collecting protected information arise. The employer must be careful not to use any discriminatory information in its hiring decision.

With the influx of new information at your fingertips, and the gleeful rush to take advantage of new practices, it’s important to consider how you’ve done things in the past. Have you had trouble finding employees who fit? Or have your hiring practices worked as well as you can expect? Do employees stick around, or do you have high turnover? If you’ve had trouble with hiring, why? Are you not reaching the right candidates? Or are there internal problems that are discouraging prospective employees. If you haven’t had trouble, do you need to change anything?

It’s all well and good to look at opportunities to improve hiring practices, but employers will do themselves no favours by googling or otherwise creeping on candidates without first thinking about the ramifications.

Ask yourself:

  • Will an Internet search provide more useful information than you might gain from an interview and reference check?
  • Is there a way to avoid encountering protected information on a candidate during an Internet search?
  • Is the potentially useful and usable information worth the trouble of avoiding the protected information?
  • Are you willing to make the effort to implement policies and procedures to reduce the risk that you will use protected information in hiring decisions?
  • What will a candidate think of your attempts to gather additional information about him or her?

So before you jump on the Internet background search and/or social network password-sharing bandwagon:

  • Understand the issues. Talk to a lawyer. Talk to your existing employees.
  • Understand your existing hiring and background checking policies. Talk to your human resources staff. Look at termination, resignation and turnover rates, absenteeism, length of employment, performance.
  • Update your policy and procedures to reflect any changes to practice. Train HR and hiring staff on updated policy.
  • Divide candidate research function from hiring. The researcher should report to HR only information relevant to employment, omitting all protected personal information.
  • Request permission from candidates before googling them. Mention your division of duties and assure them you will not use any protected information in a hiring decision. If they say no, assure them you will respect their wishes and will not use their refusal as the basis of a hiring decision. (LinkedIn and other sites that exist to draw businesses’ attention to potential employees’ profiles, need no consent, in my opinion.)

Is it important to make a big deal of the simple act of googling a person? Have you researched candidates online and has it helped your hiring?

Adam Gorley
Human Resources and Compliance Editor

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Adam Gorley

Adam Gorley is a copywriter, editor and researcher at First Reference. He contributes regularly to First Reference Talks, Inside Internal Controls and other First Reference publications. He writes about general HR issues, accessibility, privacy, technology in the workplace, accommodation, violence and harassment, internal controls and more. Read more
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