A survey by the internet monitoring company Reppler has found that 90% of people responsible for hiring staff had checked a candidate’s profile on a social network as part of the screening process. Moreover, 69% had rejected a candidate based on the content found on his or her network profile. Conversely, 68% had hired someone based on his or her presence on the social networks.
These statistics are stark but hardly surprising. On-line recruitment has become an important tool, particularly for global employers, and most HR professionals believe that use of on-line reputational checks will continue to grow. Many are even actively searching social media sites for candidates who are “passive” or not actively looking for a new job.
What legal issues arise out of all this and how are these issues to be managed?
The two main areas of law for global recruiters are the rules on discrimination and the rules on data privacy. These rules vary considerably around the world and there are different cultural expectations and historical realities that affect tolerance levels for social media data “mining”. To further complicate the picture, many global employers outsource the recruitment process to another jurisdiction or centralise their global recruitment process into one jurisdiction.
Most countries now have rules preventing discrimination when selecting new recruits. The prohibited grounds for discrimination often include gender, race, colour, religion, age, disability, place of origin, sexual orientation, family planning and other human rights based grounds such as social or economic status or political opinions.
Recruiters must obviously steer clear of these topics at interview. However, a quick anonymous check of a social network profile might give answers to quite a few of them. Employers therefore have an increased opportunity to discriminate and also an increased risk of being falsely accused of having done so.
The data protection and privacy laws of many countries limit both the amount of on-line information an organisation can mine about a potential candidate but also the use, storage and transfer of that social media data.
A Diverse Global approach
North America: Canada has broad rules on discrimination and a robust privacy regime that will directly affect the use of social media information for recruitment. In general terms, the candidate’s informed consent must be obtained both for access and use of the data.
In the US there are Federal and State laws against discrimination. State and common law rules may apply to privacy and online data mining but there is currently no comprehensive US data privacy law. The procedural requirements for conducting background credit rating checks may apply if the process has been outsourced to a third party. The requirements include candidate consent and pre-adverse actions disclosures (in this case the decision not to offer employment).
Latin America: At this point, there is little case law or statutory authority that affects the use of social media for recruitment selection in Latin America, and data privacy laws are still evolving.
Argentine law, for instance, does not have any restrictions on pre-hire background checks and therefore there are no specific limitations on social media background checks either.
However, any pre-hire check must be conducted so as to avoid any claim of discrimination based on race, religion, nationality, ideology, political affiliation, union membership, sex, economic standing, social condition or physical characteristics.
In Mexico, there are no specific laws that would apply to recruiting through social media. The 2012 Data Privacy Law has no restrictions on using data from social media sites for recruitment. If an individual has chosen to upload and make the information public, the new law does not consider such information in need of protection.
Europe: Europe is of course the most highly regulated region, with France having the strictest rules. French candidates must be informed of the recruiter’s selection policies and processes. Only professional networking sites (such as Linked in) may be used. Certain publicly available data can only be used in employment decisions with the prior consent of the French Data Protection Authority, which can take 3 months to obtain.
In Germany, Works Councils have the right to be involved when setting background check policies and employers are only entitled to obtain personal information about an applicant if it is relevant to the job. Further legislation restricting use of social media is under consideration.
The UK regards an online search as “data processing”, which requires the applicant’s prior consent.
Middle East and Africa: The situation in the Middle East is developing. Egypt’s constitution establishes a basic right to a private life but there are no data protection laws. Employers can process personal employee data without consent although they are encouraged to tell the employee. Saudi Arabia as no privacy law but employers are advised to tell employees when they are processing data. Israeli law gives a right to privacy and data protection rules.
Asia Pacific: Use of social media is widespread in the Asia Pacific but discrimination and privacy rules have not had a significant impact so far on its use for recruitment.
Check list for global employers
Given this diversity, global employers need to develop robust policies and processes that ensure compliance with a range of different rules. These should include:
- written policies that require and demonstrate non-discriminatory usage of social media background checks, where they are permitted;
- procedures to comply with local privacy laws, including pre-prepared notices and consent forms, necessary data privacy registrations and legal development tracking;
- appropriate policies regarding disclose to a candidate of information used to determine whether to hire that individual;
- formally requiring third parties retained to conduct the searches to comply with company policy and local rules and practices; and
- the use of a Chinese wall between the person who carries out the social media background check and the recruitment decision-maker to avoid discrimination claims.