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This is Part 2 of our two-part series on social media in hiring. Click here for Part 1!

There is the personal and there is the professional, and never the twain shall meet. At least that was once the prevailing attitude towards work life and private life. In a progressively interconnected world, the personal and the professional are becoming increasingly intertwined. But are there problems, particularly legal problems, that arise from the fusion of these two aspects of one’s life? What sorts of employment-related legal issues, for instance, might employers (and employees, by extension) encounter in the hiring process if they choose to review candidate social media profiles? We’ve covered some issues in Part 1 of our “social media in hiring” series. Below are some further thoughts worth considering.

Could a review of a candidate’s social media account lead to an unfair/biased hiring decision?

Human rights law prohibits employers from considering certain characteristics as part of their hiring decision. One main issue with reviewing a candidate’s social media is that these characteristics may be on full display and an employer may consider them when choosing who to hire. A glimpse into a candidate’s social media accounts could reveal personal information, such as marital status, that could, either consciously or subconsciously, lead to a biased hiring decision. Of course, the potential for bias as a result of reviewing one’s social media accounts is not restricted to the hiring stage, but a review of a candidate’s social media accounts at this stage could make it much more difficult for a candidate to get their foot in the door. In the hiring process, employers will also encounter candidates who are not present on any social media platforms. Employers may take issue with candidates in this boat, despite the fact that (or unfortunately even because) these potential hires lack access to such platforms due to, for instance, economic reasons. This could be a major and unfair setback for more disadvantaged candidates. 

What precautions can potential employees take if they are worried about being hired/passed over based on their social media presence?

Though this is a blog post about cautioning employers in the hiring process, potential employees would also be well-advised to be careful with their social media use. It’s easy to overshare personal information on social media; younger workers, many of whom have spent more personal time on social media platforms than more established workers, also face issues that accompany their generally larger social media presence and history. Those in the earlier stages of their career should check their privacy settings to ensure that any private material is accessible to only non-professional contacts.  

Potential (and current) employees should avoid making risky or inappropriate social media posts; this can be thought of as anything that one would not want an employer to see, and includes content such as criticism of one’s former (or current) employer and inappropriate and/or discriminatory content. When in doubt, it may be better not to post. Disclosing confidential information picked up over the course of one’s employment could also negatively impact one’s career. 

It’s critical to keep in mind that the short-term decisions one makes with respect to social media, such as doing something in order to increase views on a post (especially given the increasing pressure in some industries to also perform well on social media) could have long-term negative repercussions. 

How will the law adapt to accommodate issues surrounding social media and privacy?

Privacy law is a growing and constantly evolving area of law, so there is a possibility that it will change to accommodate issues around social media. Keep in mind that the law arrives late; it changes in response to something that has already happened and any changes will often occur incrementally. It’s difficult to predict exactly the direction in which courts will steer on these intersecting issues and to guess which side – employees or employers – will be the beneficiary of any legal changes. At the very least, we are likely to see a greater number of legal discussions on issues surrounding social media and privacy at various stages of the employment relationship. 

A key way that social media is having a significant impact on privacy law is the ongoing efforts to carve out private public spaces online, in the same way that people expect private public places in real life (e.g. in a private conversation over dinner at a restaurant). Originally, anything posted online was considered “public”, but this view continues to evolve as so much of our lives continue to transition online.

Takeaways

Screening potential employees via social media is more common in certain industries/fields, such as parts of the technology and creative industries, where employers generally have greater familiarity and involvement with the social media landscape. Overall, the use of social media to screen employees is gaining in popularity, especially as an increasing number of applicants are present on social media. 

Employers need to be mindful of the potential to be privy to information that may bias them, and potentially violate human rights law, if they choose to conduct social media screenings. One suggestion is to have one person, uninvolved in the hiring decision, screen the candidate’s social media looking for things like good judgment in posting. While this person may incidentally come across information with respect to protected grounds, such as whether the candidate has kids, they would not report this to the hiring committee. The social media screener will be siloed from the hiring committee to ensure that the hiring committee does not have any information that could violate human rights law or bias them. Needless to say, employers have many reasons to approach social media as a new hire vetting tool with caution.

If you have questions about using social media as a hiring tool, please get in touch for a consultation.