As published in CK Momentum Issue 6 (Click here to download)
If social media is a necessary workplace “evil”, then what lies beneath is the often practised, but rarely mentioned, custom of “Facebook stalking”. This involves reviewing the social media postings of potential job candidates, political candidates and, in some instances, relationship candidates.
Employment & Industrial Relations Partner Belinda Hapgood considers the employment law dynamics at play when an employer chooses (as part of its recruitment practice) to conduct social media checks and screen (ie hire or reject) candidates based on what might be found there.
IS IT DISCRIMINATION?
An employer could come unstuck if the posts reveal something about a job candidate that constitutes a “protected” attribute. For example, the candidate is a member of a particular political party or union, is of a particular religious persuasion, or is planning on becoming (or actually) pregnant.
These characteristics (and many others) are attributes that discrimination legislation prevents employers from using as a basis for a “failure to hire” decision (in the same way that questions about these matters cannot be asked in the interview process). The employer who discovers these matters via a social media search is equally exposed to a discrimination complaint if they use these characteristics to form the basis of a hiring decision – granted, though, that this may be difficult to establish.
Although it is not necessarily unlawful to search social media to understand whether the candidate who presents at interview has a matching online presence, care must be taken to document what is found and the role (if any) that information plays in a recruitment decision. Suggestions to avoid making unlawful decisions on social media findings include searching only publically accessible sites (eg don’t “friend” a candidate on Facebook simply to gain access to their profile) and separate the decision maker from the social media reviewer. The reviewer’s task is to “remove” any discriminatory data from the social media review in a report they then provide to the decision maker.
Ultimately, it’s worth remembering that people are rarely what they present either in interview or online and, as with all recruitment decisions, “hire slowly to prevent the need to fire fast”.
