To check or not to check?
As the practice of vetting job candidates through review of their social media presence becomes more prevalent, especially in industries and businesses oriented around interactive digital technologies, the question of whether employers are legally entitled to do so becomes an increasingly relevant one. Employers should take notice of not only the benefits that can be derived from this process but also the potential practical and legal problems they may encounter when using this approach.
The process for hiring candidates for a position should, ideally, be one that includes consistent and valid evaluation criteria. Logically speaking, the more consistent the process is, the more accurate the final decision will be. It would not be difficult to envision a scenario in which an employer assessing potential hires based on their social media presence finds, for example, that one candidate has no online presence, another candidate has a strong online presence on several platforms, all of which are publicly available, and third candidate has a limited online presence, but with minimal publicly accessible information. In this fairly common situation, not only do employers end up with candidate profiles at various levels of completion and containing different types and amounts of information, they also risk forming hiring decisions based disproportionately on candidates’ social media presence at the expense of other important factors.
Screening candidates by checking their social media accounts could also be a time and labour-intensive process, particularly for employers with smaller human resources departments.
Employers should, from a business standpoint at the very least, ensure that the potential discovery of productive or important information about potential employees derived from this process outweighs the time and resources required to conduct thorough investigations and analyses.
In the course of reviewing a potential employee’s social media profiles to determine their suitability for a position, it is likely that the employer will come across information about the candidate’s personal attributes. Some of these characteristics, ranging from marital status to race, may be protected grounds under the Ontario Human Rights Code and discrimination based on any of these grounds is a violation of the Code. In using social media as a hiring tool, an employer runs the risk of making a biased and unfair hiring decision based on these personal characteristics. Employers should be cognizant of the potential legal consequences they may face in the event that they are required to defend a hiring decision in court.
Employers should tread with caution when vetting a potential employee based, either entirely or partially, on the potential employee’s social media presence. A job candidate’s social media accounts could easily be misinterpreted and taken out of context. These online profiles also rarely provide a fulsome picture of a potential hire. This is not to dissuade all employers from vetting applicants through social media. For positions where a candidate’s social media presence is an essential element of the job, for instance, employers may be well-positioned to include this element as a major part of their recruitment procedures. To decrease the risks around this practice, employers could consider creating a firewall between the social media reviewer and those involved in making the hiring decision. As a greater number of individuals with social media presence enter the workforce, employers should be aware of the risks of employing this approach and incorporate social media into their vetting processes with care. When in doubt, employers should seek the advice of legal professionals to assist them with identifying the risks and liabilities applicable to their specific hiring processes.
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