If you are a recruiter, a hiring officer, or were simply asked to fill a position, you will have heard of Social Media Recruiting. With today’s tech savvy population, finding candidates online is the most practical approach. However, with this new wave of information available about candidates, you have to be sure you are not violating candidates’ privacy or human rights as you maneuver through the internet.
About the legislation:
Privacy legislation is relatively new in Canada, becoming effective in the early 2000’s for federally governed companies (PIPEDA). It also exists for provincially governed companies in the provinces of British Columbia, Alberta and Quebec. For the rest of the provinces, it has been best practice to follow as closely as possible to those provinces with existing privacy legislation. Although not much has gone through the courts regarding privacy legislation, the general consensus seems to be, if it’s publicly available, you can use it. Publically available meaning, if everyone can see what the candidate has posted on the internet, there is no violation of their privacy by viewing it. It is, however, inadvisable to request any passwords from the candidate, or try other methods in order to obtain information about the job candidate, such as, requesting to join their network for that purpose.
In Canada, beyond concerns over privacy, employers who use online methods to screen candidates must also consider the protections under Human Rights legislation. Candidates are protected against discrimination in hiring and other employment decisions (i.e. promotions, raises etc.). Employers cannot discriminate based on race, nationality, ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and/or conviction for an offence for which a pardon has been granted. There are some variations to these protected grounds across provinces, for instance, Ontario recently added gender identity and gender expression to that list. Employers have to ensure that their hiring decisions were not influenced either on purpose, or inadvertently, by viewing a candidate’s information through social media. Candidates not chosen for the position can easily claim they were discriminated against, simply because the employer had access to something under a protected ground (i.e. marital status). To be discriminatory, it doesn’t even have to be the sole reason the employer didn’t choose the candidate, just that it was a factor.
Outsourced recruiting?
Along with the increase in available information through social media, we have also seen an increase in applicants posting more personal information on their resumes. In some cultures, pictures, marital status and age are commonplace on a resume. To avoid these “accidental” discriminations from happening, many advisors will suggest hiring an Outside Consultant to perform recruiting duties. The Outsourced Consulting Firm performs all the recruiting functions, including background checks and screenings. The Consultant then provides just the pertinent details to the hiring company to make the final hiring decision, thereby eliminating some of the risks of discrimination and claims of potential negligent hiring. However, companies must ensure they are working with a professional consulting firm that understands the local legislation governing where the hiring is taking place. In a recent Ontario case, a Human Resources consultant discriminated against an applicant indirectly based on their age
(see Reiss v. CCH Canadian Limited). In this case, the consultant told the applicant he wasn’t selected for the position because the hiring company wanted to fill the roll with someone “more junior”. The company was held liable to pay the award of $5000.00 to the applicant, even though it was technically the consultant who discriminated against the applicant.
5 tips to avoid alleged discrimination and privacy violations:
To avoid issues of discrimination throughout the recruiting process, here are a few measures to consider:
1) Ensure that all candidates are asked the same questions (doing this helps eliminate the candidate’s potential allegation that they were treated differently). Interview software exists that allows companies to perform virtual interviews on candidates via web cams. The software allows for the same set number of questions to be directed to candidates, and the same amount of “live” time for each reply. This software has proven to be a timesaver for many companies (and helps eliminate discrimination claims).
2) Do not engage in idle chitchat regarding marriage, kids, religion, or other protected grounds. Although this seems like innocent dialogue, it is all too easy for an unsuccessful candidate to allege they weren’t hired for one of those protected reasons. The onus is on the employer to provide proof to the courts that the candidate was not chosen for other factors and that the alleged discrimination did not occur.
3) Create recruiting policies. A Social Media Policy should indicate what is acceptable when viewing a candidate’s social media information and what to do with any “prohibited data” that is discovered. The Interviewing Policy should indicate a standard process for each interview that takes place, as well as clear guidelines on what should and should not be asked during the interview. This policy should also explain to recruiting staff: how to correctly record information gathered during an interview, steps involved in recording the decision to hire or not hire, and how to properly relay information to candidates.
4) Document everything! Document all decisions for or against hiring a candidate (that are reasonable and will stand as a defense in court), as well as, anything that was brought up during the screening or interviewing that may be “prohibited data” and how it was eliminated from the decision making process.
5) Avoid points 1-4 and hire a trustworthy consultant!
If all of the above are implemented and performed correctly, there is a large risk reduction and you are protecting yourself and/or your company from allegations of discrimination or privacy violations.