Human Rights in the Workplace

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

Today marks our last installment in the series on whether employers should be using the Internet to screen job applicants.  (Well, at least it's my last post for now.  As I've mentioned before, this is an emerging area of the law so I'm sure there will be more to talk about down the road).  If you missed the first two posts of the series, you can check out Part One here and Part Two here.  I'd also urge you to read the comments posted by Dan Michaluk to Part Two (scroll down to the end of the post and click on "comments").  His comments aligned very well with my thoughts going into this post and they also prompted me to press my thinking further so I thank him for taking the time to contribute.

I'll be honest, when I was first asked by one of my readers about whether employers should be doing Internet-based or social networking-based searches in the recruitment process my initial response was to recommend the opposite of Nike's famous slogan and say "just don't do it".  Certainly, in Part Two, I set out a whole host of legal problems that can arise from doing Internet searches in the recruiting process so it would be completely reasonable to suggest you should avoid them like the plague -- at least until we have further direction from the law.  At this point in my thinking process, I still tend to sit closer to that side of the fence.

But, I also have to be pragmatic.  Given that there are employers in Canada already doing these searches (remember that 12% statistic we talked about in Part One), given this is a trend that will likely only increase as time goes on (as shown by what's already occurring in the US) and given that I know the lure of a quick Google search may be just too much for some of you to resist, let's move to looking at this issue from a practical perspective. 

If you think you might want to take a peek at what pops up on an Internet-based search of your job applicants, what are the things you should be thinking about in order to minimize your legal liability?

Here are my TOP EIGHT TIPS:

1.    Be Realistic

Before you embark on a Google or social networking site search, I think it's important for you to reflect on whether, given who you are as an employer and the nature of the job you are attempting to fill, you really need to conduct these types of searches in the first place.  If you're a mom and pop grocery store looking for a part-time bagger, your approach might be very different than, say, if you're the President of the United States looking to cull together your White House team. 

Going back to Part Two, you'll want to ask yourself whether a job candidate's online presence, whatever it may be, could somehow come into conflict with the job you are considering hiring them for.  If you can't connect the dots, you shouldn't be doing these types of searches. 

Remember: just because the information may be out there doesn't mean you need to access it.

2.     Maintain the Upside-Down Funnel

Remember in Part Two I talked about how it is always advisable to think of the the information-gathering process relating to your job recruits as an upside-down funnel.  You should be ensuring that you are only asking what you need to at each stage to determine whether your candidate moves forward.  Too much information too soon plus an adverse hiring decision will increase the chances you'll be faced with a discrimination claim.

With that in mind, it is my view that any Internet-based searches should be done after you have made your candidate a formal job offer. 

3.    Be Upfront

This point ties in closely with point #2.  I think you should be clear with all of your job applicants that if they reach the end of your recruitment process and are offered a job, you will be conducting a full background check.  You should indicate what that background check will consist of, including Internet-based searches. 

By disclosing this from the get-go you demonstrate that you're not doing anything "behind anyone's back", and you might even have job applicants who weed themselves out because of your disclosure.  That might be a good thing (if they, perhaps, have put something out on the web that might not make them a good fit for your organization) or not (you may get quality candidates who just aren't comfortable with employers who do these searches regardless of whether there is anything negative out there about them to find).

4.    Establish a written process

The saying "the best defence is a good offence" applies as equally to mitigating your legal risk as it does to the sports world.  By this I mean that it always helps to have a written document that you can point to in your defence against litigation setting out what you did and didn't do in relation to any particular process you adopt in your workplace.

Here, you'll want to give thought to setting down in writing the following:

a.    what Internet-based searches will be run;

b.    what information yielded by those searches will be examined and why;

c.    how you will assess what may be discovered;    

d.    what use will be made of that information;

e.    how you will document any information relied on for the purposes of the hiring decision.

You'll really want to give a lot of thought to developing your search criteria so you can show a human rights commission, tribunal or civil court that you weren't just going on a fishing expedition and that there are tangible job-related reasons why you conducted these searches in the first place.   Most importantly, from my perspective, you always want to be able to demonstrate that you only looked into what was needed to appropriately judge your job applicants on the basis of personal merit.  The more tightly honed your search criteria, the greater the likelihood that it might be found reasonable upon review.

In terms of record-keeping, as pointed out by Dan Michaluk in his comments to my Part Two post, you'll want to retain a hard copy of any information generated by Internet-based searches that meets your search criteria.  The hard copies should be placed on your recruitment file.  As Dan notes:

"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."

5.    Have someone other than the decision-maker do the searches

To ensure that the person who is making the decisions as to who gets hired and who doesn't is only able to base the decision on the best (read: legally sound) and most relevant information it is advisable to insulate him or her from any Internet-based searches being done.  In other words, the decision-maker should never do the searches.  Keeping the decision-maker insulated in this fashion helps insulate the hiring decision from legal criticism.

Of course, you'll want to ensure that whoever does do the searches is fully apprised of your written process under point #4, and is clear on what they need to do to abide by the law when conducting the searches and determining what information should and shouldn't be passed onto the decision-maker. 

6.    Be Consistent

Ensure that you apply the Internet-based background checks equitably to all candidates to whom you've made a job offer.  If you don't, you might find yourself faced with a discrimination claim on that basis alone.  

Similarly, once you embark on doing these types of background searches either for all or just particular jobs in your workplace (again, keep in mind point #1 above), then do them consistently.  If you do them some times and not others, it begs the question why.  And a human rights commission may well be interested in finding out.

7.    Be as fair as possible

I think it would bode well for an employer to give job candidates the opportunity to respond to any concerning information generated by the Internet-based background check.  Given the concerns I raised in Part Two about ensuring the accuracy of information gathered on an Internet-based search, it seems to me that this would not only be fair but a wise approach as well. 

8.    Document the decision

Once the Internet-based searches are completed and any pertinent information given to the decision-maker in your organization, ultimately, the final decision on hiring should be set out somewhere in clear terms.  Explain your rationale for choosing a particular candidate, rejecting another.  You want to be prepared to establish why you made the decision(s) you did and to show that inappropriate considerations, specifically prohibited grounds under human rights legislation, played no factor.

Parting Thoughts

While I started this series of posts in response to a question from a reader, in the end, my purpose turned out to be much broader than that (if the length of my posts didn't tip you off to that before, now you know!).  Once I started looking into this issue and learned that there were Canadian employers out there already doing these types of searches, it became concerning to me that they may well be doing them without fully understanding their legal risks.

I hope that I have been able to arm you with information so you know what the issues are (at least as they appear to be at this early stage) and that I have spurred you to think about how to address them if you choose to make the decision to venture into conducting Internet-based searches on your job candidates.  At the very least, you should think first, do second and most importantly, do after you have received the appropriate legal advice specific to your situation.

Until next time!

 

 

 

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.

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

Are you or the organization you work for using or thinking of using social networking sites (such as Facebook or MySpace) or otherwise looking into a potential employee's online presence (Google search, here we come) as a way to recruit the best and the brightest? 

If so, as you'll see below, you're not alone.  But, is leveraging the Internet to find your ideal employee a smart move that saves time and money or is it a human rights trap?  For that matter, are these types of searches just generally more of a legal headache than they're worth?

One of my terrific readers asked me to weigh in on this interesting issue.  And so, today is the first installment in a two-part series where I attempt to tackle it.  I'm not the first to discuss this subject (do a Google search on this topic and you'll find a huge number of news articles and blogs that have covered it, typically American) and I certainly won't be the last.  But, as usual, I'm going to try to look at things from a Canadian human rights law perspective.  Please remember though, my comments are general in nature and should not be taken as legal advice for your particular situation.

In today's post, I'm going to discuss how social networking sites fit within the current recruitment landscape.  

What are Social Networking sites?

Social networking sites are online communites that enable people with shared interests to communicate through a variety of networks.  The sites that I think most people are familiar with or have at least heard of are MySpace, Facebook and LinkedIn.

You gain entry into the sites by signing up and creating a user profile.  Once access is gained to the site, you can then look for people you know.  When you establish a connection with someone, whomever is in that person's network can now see your connection with the person.  On the flip side, you can also see who that person is connected to.

In addition, once you have access to the site you can share photos, videos, comments and more with those you are connected to.  Sharing in this way is easy because you post something once and everyone who you wish to see or access that information can now do so.

Why is there an interest in using Social Networking Sites to Recruit?

Employers seeking to find high quality candidates for job openings know they need to go where those potential candidates are.  And, statistics show that membership in social networking sites is growing exponentially.  For instance:

• LinkedIn has a user base of 30 million professionals world-wide;
• Facebook has more than 150 million active users world-wide; 
• MySpace has 110 million users world-wide. 

For further statistical information on the use of a wide variety of social networking sites, check out this helpful post from the blog Web Strategy by Jeremiah.

Ways Employers are Using Social Networking Sites to Recruit

It appears that employers are using social networking sites in the recruitment process in three ways:

1. to post ads for job openings or to create recruitment-oriented pages;
2. to search for potential job candidates using specific key word searches; and 
3. to screen job applicants by reviewing their social networking information to determine their 'fit' within the organization. 

The first two ways relate to the finding of employees, one obviously being more active than the other. The third way relates to the weeding out of candidates through the discovery of information that doesn't sit well with the employer.  This weeding out phase can presumably at any stage of the recruitment or hiring process: on receipt of a resume, before the interview stage, after the interview stage or subsequent to a conditional job offer being made, with the condition being a clean background check.

Trends

Studies in both Canada and the US indicate that scouring the Internet for information about job candidates is a growing trend:

• Careerbuilder.ca released a survey in December 2008 of 286 hiring managers and human resource professionals in Canada.  The survey indicated employers are looking to use the Internet as a vehicle for finding potential employees.  In particular, 9% were planning to increase spending on recruitment through the use of social networking sites; 
• earlier in 2008, a Careerbuilder.ca survey noted that 12% of Canadian employers were already screening candidates via the Internet on a regular basis while 19% planned to begin using these resources for the same purpose that year; 
• a June 2008 survey of 3,169 hiring managers and human resource professionals in the US indicated that 1 in 5 use social networking sites to research job candidates.  34% found information during their searches that lead them to reject a potential candidate from the selection process.  

Over time, I suspect that the desire to conduct Internet and social networking site searches will only increase as younger recruiters come into the workplace who are very much used to engaging in social networking activity.  Beyond that, they are already 'in the network' to enable access to information employers might be interested in seeking.

What can an employer find out?

The sky appears to be the limit here.  Many social networking sites have fill-in type forms that ask for a whole host of personal information.  Others give you options on what information you wish to make public.

But, just as an example, from my recent foray into Facebook, I could easily have disclosed my sex, age, marital status, sexual orientation, religion and political affiliation without even venturing further than filling out a basic profile.  Once I upload my photo, you can now see my ethnicity and, if I didn't disclose it in my profile beforehand, my sex is obviously apparent.  If I take a step further and upload some photos of my family, now you know I'm married (if I didn't disclose it before) and that I have two children.  So, voila, without thinking much about it, I've disclosed information relating to the protected characteristics set out in most human rights legislation across Canada. 

There is more, though.  Many people don't consider what they say on social networking sites to be 'public' in nature (especially when we're talking about MySpace or Facebook and other more informal sites).  Instead, they see it as a forum to connect with friends.  So, the conversations and disclosures run the gambit. As do the photos and videos. This includes information that may expose potential disabilities such as addictions or physical or mental conditions that people may be contending with and 'talking out loud' about.  More potential protected characteristics.

Just as a general observation -- and this is very general -- my experience being involved in social networking sites so far is that younger users of these sites seem less inclined to compartmentalize their lives into 'public' or 'private', 'online' or 'offline'.  They just 'are' because they've grown up with this stuff.  With that comes postings which might seem, to those who have less or no involvement in using social networking sites, extraordinary or inappropriate.

People who are members on these sites usually do have access to privacy features that limit who can become their 'friend' or a member of their network, and thus, limits who has access to their personal information.  But, there may be those who either aren't aware of or do not know how to access those privacy features.  Others still may choose to ignore those features completely, primarily so their friends can find and connect with them easily.  And, again, you have the prevalent thought that whatever people say or show on these sites is not public in nature.  

But, tell that to a potential employer who hits proverbial pay dirt (positive or negative) when they find you on one of them.

Conclusion - Part One

So that is how the searching of social networking sites and the Internet generally appears to fit within the initiatives taken by employers to recruit what they believe to be the best employees.

Next up, in Part Two, I'm going to discuss the potential legal issues involved in doing these searches and in Part Three I'll talk about ways that may assist in avoiding legal liability.

As always, I'm interested to hear your comments.

Reaching out -- the web 2.0 way

Today's post takes a bit of a different turn than usual. I'm not going to talk about human rights law but, instead, I wanted to mention other ways that we can get to know one another. 

In addition to writing this blog, which is my primary vehicle for engaging with people who might be interested in what I have to say (and, go figure, to that!), I'm also out and about the world-wide web in other ways too.  In addition to human rights law and its impact on the workplace, one of my other great interests is technology and its impact on the legal profession and the practice of law.  Particularly, I am intrigued about how web 2.0 or the recent trend of using the web for information sharing, collaboration and the creation of communities (social networking sites like Facebook, or professional networking sites like LinkedIn) will change how lawyers interact with their clients or potential clients now and into the future.  Always wanting to stay ahead of the curve (or at least be on it!), I've decided to jump on the web 2.0 bandwagon and learn first-hand what it's all about. 

So, in keeping with this, I thought I would share with you some of the other ways we can connect, engage with and learn about and learn from eachother:

• Twitter: this is a micro-blogging and connecting tool.  I use it as an easy way to share information and have informal discussions with people (you have to sign up to follow people) because you are limited to 140 characters. It also works in real time so the minute I see something I think is of interest to those who follow me, I can do a quick note on it and send out a link and they can access it right away.  Sometimes what I'm reading doesn't merit a full blog post so I'll do a 'tweet' about the topic instead.  Other times, what I'm finding of interest has nothing to do with workplace human rights and so I'll go to Twitter to share it instead.  In still other cases I'm just sharing water cooler-type conversation with others.  I will admit that Twitter takes some getting used to.  Here's a video from Common Craft that explains Twitter simply.  Twitter has been described as 'networking on steroids' and, from my experience, that's pretty darned accurate.
• LinkedIn: This is a business oriented social networking site.  Really, it allows people in business to connect with other people in business.  Here's my profile.  Membership is free and it's easy to join and create your own profile.  Then, please let me know if you'd like to be a part of my professional network.  Send me an invitation and I'll accept.
• Facebook.  This is a more informal way of networking and is the social networking tool I think most people have heard about.  I'm on there too and would invite you to connect.

Have a great weekend!

"Into the Future" Human Rights Conference

On December 10, 2008, you can celebrate the 60th Anniversary of the UN Declaration of Human Rights, International Human Rights Day and learn all at the same time by attending the "Into the Future Human Rights Conference" being put on by the Manitoba and Canadian Human Rights Commissions and the Manitoba Association for Rights and Liberties.

Dr. Lloyd Axworthy will be making the keynote address.  In the afternoon, three concurrent sessions will be run covering the following topics:

Session 1 - Indigenous Perspectives: Our nations, our environments, our rights

Session 2 - -The Technology Gap - the impact of technology and the changing environment on people with disabilities

Session 3 – Social and Economic Rights- a woman’s burden

To learn more about these sessions, read the Conference Agenda.

To register, go to the Manitoba Human Rights Commission's website.  Remember that early bird registration ends November 28.

 

 

 

Disability complaints still dominate Manitoba Human Rights Commission's case load

The Manitoba Human Rights Commission has released its annual report for 2007 and it illustrates that complaints based on physical or mental disability continue to dominate the various types of complaints received by the Commission each year.  As noted by the report:

• 41% of the formal complaints filed with the Commission in 2007 were focused on the grounds of physical or mental disability.  That's over double the next closest category of complaints --sex (including pregnancy) at 19%, followed by ancestry/ethnic origin at 17%.

Some other interesting stats for employers:

• of the formal complaints filed in 2007, 150 of the 274 complaints alleged discrimination while 79 alleged a failure to reasonably accommodate;
• and the kicker -- 68% of all formal complaints filed in 2007 were against employers.

I'd recommend you have a look at the report, in particular pages 10 through 15.  That's where you'll find summaries of select cases that were either resolved or went to adjudication in 2007.  I find that when you read through actual 'real life' situations, that's where the learning is to be had.  Read where other businesses or organizations went wrong and avoid doing what they did.  Your employees and bottom line will be happy that you did!

Disability & Work: recommended reading

Thanks to Workplace Prof blog for a post noting the publication of the paper entitled "Disability and Work: The Transformation of the Legal Status of Employees with Disabilities in Canada" by University of Western Ontario Professor Michael Lynk. The paper's abstract is as follows:

Abstract:     
The rise of the accommodation duty, and particularly the accommodation rights of employees with disabilities, has been the greatest single innovation within Canadian labour law over the past twenty years. High Law principles on disability accommodation have been developed through a series of Supreme Court of Canada rulings, and these principles have been applied through the voluminous Low Law decisions of labour arbitrators and human rights tribunals. This article examines the dismal employment status of employees with disabilities in Canada, traces the emergence of the Supreme Court of Canada rulings, and critically examines the caselaw on disability accommodation from labour arbitrators, human rights tribunals and the common law courts. Although Canadian labour law transplanted the accommodation duty from the early civil rights jurisprudence in the United States, recent Canadian law on disability accommodation has headed in a much different direction than its American progenitor.

You can download the paper here. 

I had the privilege of obtaining my own copy of this paper at the Pitblado Lectures I attended back in November (mentioned in a previous post).  While the paper is a lengthy read, it provides, in trademark Professor Lynk style, a thorough tracing of the history of the law on accommodation of disability in the workplace in Canada.  I highly recommend you take the time to read it.

Accommodating family status in the workplace: the current state of the law

Does an employer have a legal obligation to accommodate an employee's child care or other family needs?  It's a question that I often get asked and is clearly a "hot topic" of discussion in the workplace, as was pointed out to me recently by one of my readers.  As a result, in this post I am going to discuss the current state of the law relating to the accommodation of family status in the workplace.

The vast majority of human rights statutes in Canada establish that an employer cannot discriminate against an employee on the basis of "family status" (as far as I am aware, Prince Edward Island, New Brunswick and Quebec are the only provinces that do not make specific reference to family status in their human rights acts).  In provinces such as Ontario, Saskatchewan and Newfoundland & Labrador, family status has been defined in their governing human rights legislation.  In other provinces, such as Manitoba, and federally under the Canadian Human Right Act, family status is not defined.  But, you should check in your particular jurisdiction because some provincial human rights commissions have established policies setting out their positions on how they will approach defining family status, whether there exists a specific definition of the term in their human rights legislation or not.  (See, for example, Manitoba's policy on "Defining Marital and Family Status" and Ontario's "Policy and Guidelines on Discrimination Because of Family Status").  In Manitoba, the Commission takes the position that "family status" not only refers to a parent-child relationship but also includes "any other familial or perceived familial relationship."  As a result, it would appear that in this province, the term family status will be construed broadly (a review of the Ontario policy discloses a similar approach will be taken by that Commission).

The reason accommodation of family status has become such a "hot topic" these days is that it has only been recently that courts, tribunals or arbitrators have examined, to any degree, an employer's accommodation obligation where an employee's needs relating to his or her family status have come into conflict with workplace requirements. 

The highest level of authority on the issue of when the duty to accommodate in the workplace is triggered by a family status-related need is a 2004 decision from the British Columbia Court of Appeal: Health Sciences Assn. of British Columbia v. Campbell River and North Island Transition Society ("Campbell River").  In that case, the employee was a part-time child and youth support worker.  She worked from 8:30am to 3pm.  Then, she was informed by her employer that her hours were going to be changed to 11:30am to 6pm.  One of the employee's four children, a 13-year old boy, had serious medical and behavioural problems.  After being notified of the change of working hours, the employee asked her employer if she could continue working her usual hours because it was essential to her son's well-being that she provide him with after-school care.  The employer refused.  The employee worked at the new shift for two weeks, but then went on stress leave and did not return to work.  The union filed a grievance on the employee's behalf alleging discrimination on the basis of family status.  The arbitrator dismissed the grievance on the basis that there was no discrimination.  On appeal, the BC Court of Appeal took issue with the meaning the arbitrator attributed to the phrase "discrimination on the basis of family status".  The Court stated:

"...[family status] cannot be an open-ended concept...for that would have the potential to cause disruption and great mischief in the workplace; nor....can it be limited to the 'status of being a parent per se' as found by the arbitrator...for that would not address serious negative impacts that some decisions of employers might have on the parental and other family obligations of all, some or one of the employees affected by such decisions." 

In the Court of Appeal's view, in order to prove a prima facie case of discrimination on the basis of family status, an employee had to show:

1. the employer had changed a term or condition of employment; and
2. the change resulted in a serious interference with a substantial parental obligation of the employee.

If an employee was able to prove both parts of this two-stage test, then a prima facie case of discrimination was made out and the onus then shifted to the employer to prove that the change in the term or condition of employment was reasonably necessary in all of the circumstances.  In establishing this particular test, the Court of Appeal noted:

...in the vast majority of situations in which there is a conflict between a work requirement and a family obligation, it would be difficult to make out a prima facie case [of discrimination]" (emphasis mine).

But, in relation to the facts of the specific case before it, the BC Court of Appeal concluded that the employee, had, in fact, demonstrated discrimination on the basis of family status:

1. the employer had changed a term of her employment, namely, her working hours; and
2. medical evidence at the arbitration hearing showed that the employee's attendance to her son's needs after school was so "extraordinarily important" to her son's well-being that it constituted a substantial parental obligation.  The change in working hours resulted in a serious interference with the employee's ability to discharge that obligation.

The issue of whether the employer had done what it needed to do to discharge its duty to accommodate was remitted back to the arbitrator by the Court of Appeal since it had not been considered at first instance (given the arbitrator had concluded there was no discrimination).

Since the Campbell River decision, there have been a number of decisions that have followed and most have adopted the two-stage test noted above but the manner in which the test has been interpreted varies.  And, beyond that, the BC Court of Appeal's decision has been strongly criticized by both the Canadian Human Rights Tribunal (in Hoyt v. Canadian National Railway) and the Federal Court of Canada (in Johnstone v. Canada ).  The main criticisms are:

• the BC Court of Appeal has, in establishing that an employee must show a "serious interference" with a family status need before discrimination will be found (and an employer, as a result, has a duty to accommodate) set the bar too high and contradicted what is normally required in law for an employee to prove a prima facie case.  Usually, there is no requirement for an employee to show that they have suffered a particular degree of discrimination before they gain protection under human rights legislation;
• in applying a restrictive definition to the concept of "family status" the BC Court of Appeal ignored the Supreme Court of Canada's view that human rights codes should be interpreted liberally;
• the Court of Appeal's concerns about the impact of a broad definition of family status to the work environment is more appropriately considered under the issue of whether or not an employer can demonstrate undue hardship in addressing an employee's request for accommodation due to family status needs;
• limiting family status protection to situations where an employer has changed a term or condition of employment is unduly restrictive.  The question raised here is what about more typical situations where the change that has occurred stems from the family itself and not the workplace (eg. birth of a child, family illness)?

In the Hoyt case, the employer has filed for judicial review by the Federal Court and Johnstone is proceeding to the Federal Court of Appeal.  A wait-and-see approach will have to be taken, as a result, to determine just what, if any, impact the subsequent court decisions have on Campbell River.

For the time being, employers would be well advised to keep the following in mind:

• the concept of family status may not necessarily be limited to an employee parent-with-child relationship but may go beyond that to include a much broader range of familial relationships such as a child-parent relationship (involving an employee who needs to care for an aging parent, for example);
• if an employee is experiencing a conflict between a family-related obligation and the requirements of their job, and the employee cannot or is unable to resolve the conflict on their own, you need to proceed with caution.  You will need to determine whether denying an employee's request for accommodation in such circumstances could constitute discrimination on the basis of family status.  If so, you will then need to give consideration to whether you can resolve the conflict for the employee without incurring undue hardship.  This may require you to be flexible in relation to absenteeism policies, leaves of absence, hours of work, etc.;
• it is highly recommended that if you are presented with a request by an employee to accommodate a family status need that you consult with counsel before you finalize any decision.

For employees:

• if you are encountering a conflict between your work requirements and your family responsibilities, remember that you have a duty to resolve the conflict on your own first.  So, for example, if finding appropriate child care is the issue, make sure that you exercise every effort to locate that child care;
• if, based on your particular circumstances, you are unable to resolve your work-family conflict, you should bring this to the attention of your employer.  Advise your employer as to the precise nature of the conflict, what steps you have taken to address the situation, and spell out any request you may have of your employer to assist in resolving the conflict;
• should your employer be able to provide you with accommodation, make sure that you abide by any terms or conditions of that accommodation. 

For unions:

• advise employees to make every effort to resolve work-family conflicts before filing any grievance alleging discrimination on the basis of family status.  Based on the Campbell River case, it will be an uphill battle for an employee to prove family status discrimination if all options available to them to remedy the conflict have not been exhausted.

POST-SCRIPT: Stay tuned.  There is no doubt that we have not heard the last on this issue and it will continue to be the "hot topic" for some time to come.

New study shows how US companies are addressing an aging workforce

Aging Workforce News has an interesting post highlighting the results of a just-released study exploring what four US companies are doing to address an aging workforce.  The study, conducted on behalf of the Metlife Mature Market Institute, a provider of insurance and financial services in the US, provides insights into and ideas as to how to respond to the labour force challenges employers will be facing in the not-too-distant future.  It's a useful read.

Manitoba Human Rights Commission's annual report should put employers on the alert

As reported in the Winnipeg Free Press, the Manitoba Human Rights Commission has just released its 2006 Annual Report.  The Report spells out in clear terms that the Commission is handling an ever-increasing number of formal complaints which are primarily against employers and mainly in the area of accommodating (or, more appropriately, alleging a failure to accommodate) disability in the workplace.  Here are the stats to take note of:

1. the number of formal complaints being filed with the Commission is on the rise.  297 complaints were filed in 2006 which is the highest number of complaints since 1990;
2. the vast majority of formal complaints (123 of 297 or just over 41%) were on the grounds of physical and mental disability.  Dianna Scarth, Executive Director of the Commission, pointed out in the Free Press article that most of these complaints relate to accommodation in the workplace;
3. 71% of total formal complaints (210) were filed in the area of employment;
4. 34% of formal complaints alleged a failure to reasonably accommodate.