SCREENING JOB CANDIDATES THROUGH SOCIAL MEDIA: IS IT LEGAL?
Social screening and the risk of unconscious bias.
According to YouGov, nearly 60% of job seekers use social media to check out their prospective employers long before submitting their resumes or job application. Not only are they researching the jobs being offered, but they are also using a company’s social media pages to evaluate the corporate culture to determine if it feels like a good fit.
As the Society for Human Resource Management states, "For HR to overlook it today would be like ignoring email 20 years ago." And yet, many companies still have questions and concerns regarding social media screenings. Is it legal and really necessary?
Social screening and the risk of unconscious bias
Screening candidates on social media can provide a host of information regarding the candidate's age, ethnicity, religion, health, sexual orientation, and family life. This is problematic for employers and makes it unlawful to discriminate against potential job candidates based on these protected characteristics.
Screening social media profiles can facilitate unconscious bias. For example, if an employer views a candidate's profile and becomes aware of, or has a perception of, their age or ethnicity, they might unknowingly form a judgment.
If that person is not interviewed and brings a discrimination claim, defending the claim becomes more difficult when their social media profile has been viewed. As the employer was aware of the candidate's protected characteristic, it could be argued that this influenced the recruitment decision, even if it didn't.
Are public profiles really open to all?
Although Facebook and Instagram profiles are often open to public viewing, they were not designed for professional job-seeking and hiring like their more business-focused counterpart, LinkedIn. This creates a conundrum for employers who foul data protection laws when gathering information from a candidate's public (but personal) social media profile.
If social media screening forms part of the recruitment process, the privacy notice should clarify (in the section outlining where personal information comes from); and set out the legal basis for processing the data. In this context, the legal basis might be because it is necessary to enter into a contract; comply with a legal obligation; or for the employer's legitimate interests (e.g. to select suitable employees, workers, or contractors).
If any of the data amounts to sensitive personal data (e.g., details of sexual orientation), one of the additional processing conditions needs to be set out too, for example, to exercise or perform employment law rights or obligations.
If you use social media during recruitment, how can you mitigate the risks?
If your organization intends to use social media during recruitment, ensure that staff:
- receive appropriate training on data protection and diversity laws;
- document the reasons for not progressing a candidate's application;
- provide the company's recruitment privacy notice to all job applicants;
- provide clear rules and policies on social media use during recruitment and to what extent it should be used.
It is recommended that hiring managers resist the temptation to pore over candidates’ social media pages. The information is useless, but they don’t yet have the tools to find the signal in all the noise.
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