Using social networking sites in the hiring process: smart move or human rights trap? Part Two

As I discussed in Part One of this series, there appears to be a growing desire amongst employers to conduct searches of social networking sites and on the Internet to find out information about potential job candidates prior to hiring them.  

In Part Two of this series, I'm going to discuss some of the legal risks associated with these types of online searches (human rights-related and otherwise).  I was also going to set out my thoughts about how to contain your legal liabilities in this post, but have decided to keep you in suspense until Part Three.

Risks abound: technology outpaces the law

The propriety of an employer using social networking sites or the Internet generally to recruit employees is very much an emerging legal issue. Innovations in technology, as a general rule, outpace the law (which in comparison can often develop at a snail's pace). In other words, the law is playing catch-up here.  Certainly, I am not aware of any Canadian human rights law cases addressing recruitment or hiring practices using web 2.0 technologies. Haven't yet come across a US case either. But, I'm sure it is only a matter of time before someone somewhere addresses this issue in a more formal legal context.

As a result, if you are an employer currently using these types of searches for whatever purpose in the recruitment of employees or you are thinking of doing them, you need to know that you're in a relative legal no man's land, so to speak, at the moment. We have no case law precedents specifically on point to draw from. This means that you are taking uncertain legal risks venturing into such a practice.

Potential legal and related issues

Ok, so there are risks. But life is full of risks, right? True, but if I'm going to take a risk I like to understand what the downsides, in particular, might be. We might not have case law specific to the kinds of situations I've been talking about so far but that doesn't mean you can't extrapolate. 

So, here are my thoughts as to the potential legal and other issues relating to vetting through social networking sites in the hunt for a hire. By no means am I suggesting that this is an exhaustive list; these are just the issues that easily come to mind (mine at least).  And, remember, though, these are just my general thoughts, not legal advice. If you want to know whether you should be doing online searches or not, you should speak to your lawyer.

1. The Big Hurdle to Overcome: Human Rights Legislation

In my view, and this isn't just a professional bias because of the work I do but just a simple fact, the biggest legal "obstacle" in the way of an employer proceeding full steam ahead with online searches of job applicants or candidates is human rights legislation.  

a. Job Applicants are Protected

Job applicants are protected by human rights legislation across Canada. So whether we're talking about people who have sought you out for a job (in response to an ad or otherwise) or you've sought them out, you have to be careful about violating human rights law.

b. The hiring process should work like an upside-down funnel

When we come at the hiring process from a human rights perspective, you should think of it as an upside-down funnel.  Because asking for information or documentation that may include details of a person's protected characteristics can lead to the appearance of discrimination, particularly if you decide not to hire the person after obtaining that information, you should ensure you are asking only that which you need to at each stage to determine whether the candidate moves forward in the process. 

The further you get into the process, the more information you are likely to be seeking and the greater the potential for disclosure of a person's protected characteristics.  So long as you ensure the questions you are asking always relate back to the person's ability to do the job, the liklihood of a discriminatory inference being made from a decision not to hire the person is contained.  At the actual job offer stage, you may even be able to ask employment-related questions that do inadvertently expose a person's protected characteristics (such as the existence of a disability that may impact their ability to do the job brought forward from a medical examination) so long as the offer has been made and the person has accepted the offer is being made on the condition that a satisfactory response to the request for the information is required and received.

c. Doing online searches can turn the funnel right-side up 

As I noted in Part One's post, once you are able to tap into a person's online social network, you can glean a lot of personal information about them. A basic Internet search can enable that to happen as well. For example, you could discover a job candidate's personal blog where they discuss a whole range of personal information.  Once you get into the personal information sphere, you naturally get into the potential disclosure of characteristics of that person which may be protected under human rights legislation.

The danger of doing a web-based search on a job applicant or candidate too early in the hiring process is that such an action turns that funnel I talked about above right-side up -- which, while far more helpful if you happened to be using the funnel in the kitchen, it's not so good in connection with human rights law. Now you potentially become aware of a person's protected characteristics far earlier in the process than you would otherwise if the web-based search is removed from the equation.  That greatly increases an employer's vulnerability to a successful human rights complaint being made against them should they make an adverse hiring decision after locating that information.

Beyond that, much of the information that you can dig up on an Internet or social networking site search is not necessarily job-related.  If we return to the offline world for a moment, employers are always best advised to only ask questions on job applications and in interviews that go to assessing the person's merits to do the job. In other words, seeking information that goes to determining the person's job-related qualifications.  By following this approach, employers can avoid claims that they made an adverse hiring decision on the basis of a person's protected characteristics.  By doing an online search on a job candidate, an employer is potentially exposing itself to the very information it is wisely advised to avoid in offline world. 

So, here's something you'll want to ask yourself before making the decision to do an online search: If you should be avoiding asking for particular types of information during the hiring process, should you really be taking an alternative path that would very likely lead you to that very information in other ways, whether directly or indirectly?

d. Doing online searches can lead to bias creep

I would think most employers and recruiters know that, legally, they are not to weed out candidates from the hiring pool on the basis of protected characteristics.

But, what the law says and what we think and feel are sometimes two very different things.  All of us have biases of some sort or another.  Many people also operate on the basis of stereotypical notions of others.  Can you honestly say that if you come into possession of information in the early stages of the hiring process that hits upon your internal biases and which may just happen to be connected to a person's protected characteristics that you will set that bias creep aside?  Or would you just simply not call that applicant in for an interview?  No harm, no foul right?

It's important here to remember that a person who claims they have been discriminated against does not have to show that their race, for example, was the only reason they weren't hired for a job.  They only have to show it was a factor.  See more on this below. 

e. Doing online searches complicates an employer's legal defence

Even if you aren't conducting your searches with the express purpose of weeding out candidates from groups who are protected under human rights legislation, the minute you come into possession of that information and then make a decision not to hire someone you can find yourself smack dab in the middle of a discrimination claim. And, the tricky part here for employers is that once they have that "off limits" information in their possession even if they ignored it completely, it would be relatively simple for a complainant to prove a prima facie case of discrimination. Recall, above, when I noted that a complainant only has to show that their protected characteristics may have been a factor in the decision not to hire them.  

The employer would then face what is called a reverse onus situation. In other words, they would have to prove that this information did not enter into their decision-making process. It is never easy in the legal context to prove a negative.  It's like trying to swim upstream with your hands tied behind your back.

f. Online searches - no one will know anyway, right?

In response to all of my negativity you might be saying -- well, who the heck is going to find out if I do a quick Google search or check out the person's blog or Facebook page anyway?

Ah, the good old days when e-discovery was a word and a legal concept yet to be created.  And, when blogs didn't exist.

I'm not going to get too technical here, but suffice it to say that once you get yourself into any form of litigation (and a human rights complaint would qualify as that), you can be requested to produce records relating to your hiring processes.  That would include electronic searches.  Good complainant(or Human Rights Commission) counsel will know what they need to ask for to get at what you've been up to.  Beyond that, blogging platforms allow blog users to track visitors.  It may take some time to figure it out, but eventually it can be discovered if someone from your organization happened to stop by that candidate's blog where they shared to the world their stories about struggling with multiple sclerosis. Maybe it turned out you didn't like the type of font they were using and stopped reading at that point.  But, then again, maybe the disability had something to do with the candidate's rejection too.

g. Online searches & human rights - maybe it's best not to jump the hurdle

In the case of what information about a job candidate might be lurking on social networking sites or the Internet generally, ignorance might just be bliss for employers.  If you don't know what's out there and can legitimately say you didn't look, you've placed yourself in a far better position than if you did take a peek if you find yourself having to defend against a human rights complaint stemming from the recruitment/hiring process.

But, does it make a difference if you do these types of searches at a later stage of the hiring process?In other words, when you're at the bottom of that upside-down funnel?  For my thoughts on that question, you'll have to keep reading.

2. Collection of personal information and privacy-related issues

In Part One I alluded to the fact that my general sense of people's use of social networking sites is that they do not consider what they are disclosing to their friends and networks on these sites as public in nature. So, that begs the question, if you, as an employer, are tapping into that information or otherwise searching a job candidate on the Internet, are you breaching their privacy rights or some other legal right relating to the collection of their personal information?

Is doing a social networking-type search on job candidates effectively the same as "going into somebody's house and searching through their cupboards?"

I think the answer to this question is, "it depends".  (Don't you love it when lawyers answer this way?)  What I mean is that it depends what it is you are looking at when you're doing your online searches.  For a much better answer to this question, I turn to Canadian privacy law expert David Fraser

who also authors the Canadian Privacy Law Blog.  In this helpful powerpoint presentation on Privacy and the Workplace which he prepared (see pages 23 on), David indicates that "reviewing employee blogs and Facebook pages is a collection of personal information." But, reading a person's blog would not be considered an unreasonable invasion of privacy because a blog is publicly accessible.  On the other hand, with someone's Facebook entries, there may be a reasonable expectation of privacy if they have limited who has access to their profile.

So, how do you deal with this?  As Toronto information and privacy lawyer Dan Michaluk points out in his post on the Law and Ethics of Recruiting in Today's Wired World, authorization, accuracy, openness and necessity should be key aspects of the gathering of personal information during the recruitment process. In particular:

"I urged the participants to consider what reasonable steps a recruiter should take to ensure the accuracy of personal information collected from online sources and used in making recruiting decisions. I also suggested that the openness requirement demands that candidates know that their publicly available information may be collected in the recruiting process.....Applying the necessity principle to the online search issue, it seems to me that such a recruiting tactic can only be justified where the job raises a reasonable possibility of conflict between an employee's online presence and his or her job duties."

I'm definitely with Dan when he suggests that if employers are going to embark on online searches of candidates that they make full disclosure of such a practice.

Regarding Dan's comment about ensuring the accuracy of the information you might gather in your Internet search, I think this is particularly critical and concerning from my point of view. I think you need to question what weight you can actually place on the information you find when you do these types of searches on job candidates:

• Was the information placed by the candidate on whatever site you may happen to be looking at? Or, was it placed by a disgruntled former friend or colleague? Or just someone 'having fun' at their friend's expense?
• Is that photo you're looking at something the person uploaded or were they 'tagged' by someone else? [For the uninitiated, people can upload photos that you are in and tag it with your name/profile, even including comments about you as you appear in the photo. The photo would then show up in connection with your profile information whether you wanted it there or not. Facebook, so I understand, does allow you to un-tag yourself from photos you don't want to show up on your profile.  I'm not sure about other sites.].
• When were the photos taken? Were they altered in any way?  Altering photos in our digital world is easier than ever.
• Are you looking at the profile of the right "Jane Smith" who applied for the job or is this another "Jane Smith"? 
• Consider this wiki entry on "Digital Dopplegangers" flowing from Matthew Fraser's book Throwing Sheep in the Boardroom if you really want to get an idea of how mistaken identity on the Internet can and does happen. (Hat tip: Simon Chester's post on Slaw)  

    
3. Due Diligence issues 

Is it fair for employers to look up this information on job candidates?  Should it be considered part of an employer's due diligence in hiring the right employees for its business? 

Going back to Dan's post, he suggests that it is fair and appropriate, in some circumstances, for an employer to gather information about a candidates' online presence.  In particular, when a candidate's online presence may come into conflict with the fulfillment of his or her job duties.  Dan does suggest that conducting the online search in these circumstances is likely best done during the background check phase of the hiring process. By this I assume he means after a formal job offer has been made which is conditional on the return of a clean background check.  Placing the possibility of an online search into this stage of the hiring process does seem to accord better with my upside-down funnel theory of information collection that is most respectful of human rights principles.  But, does that mean the searches would be ok?

Garry Wise, a Toronto employment lawyer and writer of the always interesting Wise Law Blog, suggests otherwise. In Garry's view, these types of Internet searches are inappropriate:

"It sheds no light at all on job-worthiness or skill sets. It leaves employers highly vulnerable to accusations and inferences of discriminatory hiring practices. It is unlikely to yield any measurable improvement in workplace productivity.....Beyond that, this form of online corporate stalking probably favours only those candidates who are smart (or sneaky) enough to cover their tracks by deleting all the 'interesting' stuff, while also being reckless enough that they don't bother to adjust their Facebook privacy levels to restrict uninvited access while they are job-hunting."

For my part, any time I see an employer make a move that could lead them to gather information that might be used or might be seen to be used for discriminatory purposes, I get the heebee-geebees.  So whether the employer is doing online searching at the front end or at the back end of the recruitment process, I still question whether the risks outweigh the gains even in light of Dan's concerns.  Is leaving such a search to the background check stage, as broad as a background check can often be, sufficient to insulate an employer from human rights liability?  Is there a balance that can be found?  

The other question that I have is even if you do these searches at the conditional job offer stage, how exactly do you go about evaluating what it is you find on a consistent basis?  

4. Managing your searches

Anyone involved on the recruiting side of the recruitment process knows that they should be maintaining thorough records of their hunt for their ideal hire.  So, that begs the question that if you do make a foray into the online searching of job candidates, how do you maintain an accurate record of those searches?

This thought was also addressed in Dan Michaluk's post, mentioned above:

"The idea of Google searching candidates also raises difficult records management issues.  A defendant in a hiring dispute wants to be able to say, 'Everything we considered is in the file.'  Add an Internet search into the assessment process and, unless there is a rigorously-enforced and forensically sound protocol for recording the search on the formal record, the electronic discovery burden of defending a hiring dispute will be relatively significant."

So, while it may sound easy to just get on the computer and find out what you can about your job candidates, keeping track of what you've done is a whole other ball game.  One that can be very time consuming and expensive.

5. Potential breach of user agreements

I haven't looked into this issue to any particular degree, but when you sign up as a user of social networking sites you generally have to agree to accept the site's Terms of Use.  You know, those long documents written by lawyers that you scroll through on your computer screen without reading just to get bottom of the page to click "I agree" so you can get going?

Usually these Terms of Use agreements make reference to the fact that as a user you are not to be using the site for commercial purposes.  If you're an employer who has become a user for the express purposes of researching job candidates, you might be breaching these provisions.

There are likely other terms of these agreements that an employer might be in violation of if they choose to use them for background searching, etc.  In other words, you have to be careful.  Just because information may be out there doesn't mean you can use it in the way you wish to.

Parting Thoughts on the Legal Issues

As you can see, there are a number of legal issues you need to consider before embarking on a social networking or online search of a job candidate.  And, as I noted above, these may not be the only ones these are just the ones that seem most obvious from my perspective.  Right now, it is anyone's guess how the courts or tribunals will respond to claims that may be made in the future against employers for conducting these kinds of searches in the hiring process.

The question that's key for you is this:  do you feel the risks of doing social networking and other online searches outweigh the benefits or is it the other way around?  Just because the information may be out there, should you access it?

Still Ahead....Part Three

In Part Three of this series, I'll move from the legal to the practical and set out my thoughts about what, as an employer, you should or should not be doing when it comes to using social networking sites and other online searches in the hiring process.

Between now and then, if you have any thoughts or comments, please let me know.

Comments

[Nuclearrain]

Perhaps the risks outweigh the benefits here.

It seems to me that the traditional route of paper-screening and face to face interviews are far superior. I do not think we need to continue the degradation of human interaction in the pursuit of cold impersonal digital advancements.

[Dan Michaluk]

Thanks for such a great post Donna!

This practice is really important given the degree to which employers are being drawn to it. I didn't know the 12% statistic you mentioned, but it sounds about right. I wonder how many of those employers are adequately protecting themselves?

Since I wrote the blog posts you quoted from (thank you!) I've spoken and thought some more about risk mitigation and now am also recommending that employers define what they're looking for an have a non-decision maker conduct the search. If anything hits on the search criteria it can be moved into the formal recruitment file. This should keep the decision "clean" of irrelevant and risky information and should also eliminate any risks of getting into disputes about production of search-related forensic information.

Keep up the great work!

Dan