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Social Media and Background Checks

Social Media and Background Checks

By Mark Swartz
Canadian Workplace Specialist


It’s coming down to the hiring wire. You’ve narrowed it down to three final candidates for that job you posted a month ago. Each of the three finalists looks pretty tempting.
 
You’re about to run a quick background check on them. Maybe you’ll call their references. Then e-mail their ex-employers to verify dates of employment.
 
While you’re at it, you could also check out each candidate online. But the risks might outweigh the benefits – so use caution before you click.
 
Legitimate Reasons For Checking Out A Candidate’s Online Presence
 
There are all sorts of good reasons you might want to Google an applicant, or check out their Facebook page, blog, Twitter messages, etc. Your intent might be innocent and entirely professional.
 
You could be looking to confirm that the information in their resume is the same as they’ve posted online. Discrepanices would raise red flags for you that you’d want to investigate further.
 
If the applicant claims to be a subject matter expert, a quick Google search will reveal if they have actually been contributing useful info to blogs, websites, Twitter, LinkedIn Answers or Quora.com.
 
Another legitimate reason to use the web for background checks is to see how applicants present themselves to the public. Are they professional and discreet? Or do they reveal things about themselves that could be considered compromising. Possibly (though not always) this would give you a hint as to how they would conduct themselves as an employee.
 
Questionable Motives In Googling Applicants
 
It could be that you want to gather personal details about the candidate that they may otherwise not care to divulge. This includes answers to all the “prohibited questions” you legally can’t ask during a job interview.
 
An online search might reveal things like the applicant’s marital status, ethnic or religious background, political beliefs, health, activites during non-work hours…the list goes on.
 
Information of this type can lead you to form biased opinions that go well beyond what a resume and cover letter provide. You might see an applicant’s photo and judge them on their looks. Or find out their age and decide they aren’t a fit on that basis alone.
 
Legitimate Motives Or Not, Legal Dangers Lurk
 
Even if your motives are pure as Canadian snow (the white stuff that falls outside of our major cities, that is), legal complications could arise for you. Privacy and Human Rights issues are being clarified in the courts ongoingly in these matters.
 
Take the question of privacy. Does reading a candidate’s LinkedIn profile or public Facebook page violate an applicant’s right to personal information protection?

How about opening the links that a Google search about the job seeker brings?
 
In terms of privacy, PIPEDA (Personal Information Protection and Electronic Documents Act) is the law that prohibits a federally regulated employer from using or collecting an employee or potential employee’s personal information without their knowledge and consent, subject to a number of exceptions.
 
However according to legal expert Malcolm MacKillop,LL.B, Senior Partner, Shields O’Donnell MacKillop LLP, PIPEDA does not apply where the personal information is “publically available”, including a publication in electronic form. “It is arguable that a job applicant’s disclosure of personal information in a publically available blog post would qualify, however since there have been no complaints or investigations on the issue, it is difficult to predict exactly how the exceptions would be applied.”

MacKillop adds that an important consideration is PIPEDA, as federal legislation, only applies to federally regulated employers, a very small percentage of employers in Canada. While British Columbia, Quebec, and Alberta have enacted similar legislation, Ontario, for example, does not have its own PIPEDA, leaving provincially regulated employers in that province facing fewer legislative barriers to the collection of personal information on the Internet.
 
Still, there’s the Human Rights aspect to watch for, as noted earlier. According to MacKillop, an employer who inadvertently exposes itself to “prohibited information” opens itself up to a human rights complaint from an unsuccessful applicant alleging that the decision not to hire them was based on a discriminatory consideration.
 
“The applicant would not be required to prove that discrimination was the only reason that they didn’t get the job, only that it was a factor in the decision.” Where the evidence is clear that an employer had access to inappropriate information about the potential employee, it may be difficult for an employer to rebut the candidate’s case and show that the information did not play a part, even unconsciously, in the hiring decision.