A recent article in the Globe and Mail provided an American perspective on how small businesses can use social media to supplement a candidate’s job application. The article’s recommendations include browsing the candidate’s online photos, evaluating the candidate’s online content for proper grammar and spelling, and examining their Facebook friends.
While tempting, engaging in these practices may expose a business to significant legal risks. Obtaining a candidate’s personal information, without consent, may be a violation of Canadian privacy laws, even if the information is publicly available online.
Small business owners or employees performing these searches also run the risk of collecting information about the wrong person. In addition to potentially breaching privacy laws, this may lead small business owners or entrepreneurs to make decisions about candidates based on erroneous information.
Invariably, when searching social media, recruiters will obtain information about people other than the candidate, such as their Facebook friends, increasing the risk of a privacy law breach.
Human rights laws may also be violated, particularly where it can be shown that an online search revealed information such as a candidate’s race, religion or sexual orientation.
To assist small business owners, we have developed a list of best practices that can be used when recruiting in Canada:
1. Be transparent. If you’re considering performing a social media search, tell the candidate up front about the specific types of searches you wish to conduct.
2. Get consent. Ask the candidate for written consent to search their public profiles. This consent can even be requested on the job application form. Avoid conducting a reconnaissance search for photos or usernames without written consent.
3. Verify results. Ask the candidate to verify or explain any damaging results that you find.
4. Limit collection. Reserve searches for your shortlist candidates, rather than conducting searches on the initial pool of applicants.
5. Consider alternatives:
· Speak to the candidate: Ask them if there is anything that your business should be aware of prior to proceeding with the recruitment process.
· Reference checks: Ask the candidate for a comprehensive list of referees with official titles, company email addresses and office phone numbers. You can also ask the candidate for consent to contact individuals other than those included in their list of referees. Reference calls, when done strategically, will allow you to verify information provided by the candidate during the recruitment process.
· Be creative: Instead of using social media to evaluate whether a candidate is a team player, consider including a networking breakfast, for example, in your recruitment process. Develop an evaluation tool to assess how the candidate interacted with the team members and clients in attendance. This real life test provides a more informative indication of social skills than information you can glean online.
6. Ask for help. Consult your province’s or territory’s privacy commissioner’s office for guidance. Most offices provide educational workshops and helpful privacy-protective best practices for hiring that are specific to the legislation in your province or territory.
David Goodis is the director of Legal Services and General Counsel for the Information and Privacy Commissioner of Ontario. Jessa Chupik is the strategic lead, recruitment and employment equity, at Ryerson University.
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