Screening using social networks legally dangerous

Social screening job candidates hazardous

By Kate Southam, Editor of

Employers using social networks to gather information on job candidates could be breaking the law.

Social networks have become hot recruitment tools but Harmers Workplace Lawyers warn that using such sources to gather personal information to screen would-be employees carries a number of legal risks.

Harmers senior associate Bronwyn Maynard says many employers and recruiters are not aware of their obligations under the existing Privacy Act let alone the “General Protections” section of the Fair Work Act that came into force on July 1.

Under the Privacy Act employers and recruiters must:

– Inform a candidate that they have collected personal information about them.
– Explain the purpose of gathering the information.
– Tell the candidate who else will see the information.

Ms Maynard explained that under the General Protections section of the Fair Work Act employers and recruiters cannot treat someone adversely for exercising a workplace right.

Put in the recruitment context, this could mean that if a person had made an unfair dismissal claim or worker’s compensation claim this information could not then be used to discriminate against them on the job hunt.

However, how would a job applicant know that talking about being off sick due to a workplace accident on Facebook was the reason they didn’t get a job? Or that a former employer told a reference checker about an unfair dismissal claim in their past and that this information was used to cull them from the selection process?

Luckily for recruiters and hiring managers, most candidates don’t realise that under privacy legislation they are entitled to see notes made about them during the recruitment screening process.

A spokesperson for the Office of the Privacy Commissioner confirmed that not one complaint has ever been lodged by a job hunter.

“The Privacy Act also dictates that companies must only collect personal information that is necessary for their business,” explains Ms Maynard.

She said this was “particularly relevant …for the type of information shared on social media sites, much of which is not relevant to a person’s employment history or ability to do a job.”

“Importantly, employers must remember that these privacy obligations apply even if the information gathered was obtained from a public source as would be the case for many personal details included on an individual’s blog, twitter, Facebook or MySpace page,” she said.

“I am aware of some companies that have implemented formal policies that forbid the use of social media as a research tool for candidate information gathering.”

In canvassing opinion on this topic one hiring manager confided that he had culled a woman from a list of candidates for a receptionist role after deciding she had “too many friends” on Facebook.

“I thought she would be spending all her time updating her Facebook page,” said the manager who did not want to be named.

When told of this example, Ms Maynard said she did not believe the number of friends a person has on a social networking site could be considered relevant to a business.

Candidates can apply directly to employers and recruitment consultants to see the notes made and information gathered about them during a recruitment campaign. A candidate can request that inaccurate information be corrected. If the candidate considers the information irrelevant he or she can then make a complaint to the Privacy Commissioner.

Ms Maynard said while there is no set timeframe, to expect a reply within 30 days would be a reasonable.

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