I’d seen an exchange on Twitter yesterday where someone said “if you are going to use “social media” to check people the lawyers say you should tell the applicant in the ad”. Followed up with “it is the law you have to ask permission to do a background check with social media”
The person who wrote this is someone I really rate but I wondered if the advice he’d been given was rather over zealous backside covering from a lawyer. Soooooo, I turned to Barry Cullen (known as @barrythelawyer on Twitter) to ask him for the straight answer. Here is what he said:
Assuming no confidentiality or other privacy issues are triggered, which typically would not be the case as most social media is in the public domain, it is not of itself unlawful to screen candidates through social media. I would suggest that a lawyer somewhere has been giving the ever ultra-conservative legal advice that we come to expect of the legal profession in relation to social media or, as most lawyers call it, ‘the great unknown’. There are risks, however they can be managed and, as with most of the other benefits and risks associated with social media, it is really a question of “as you were ladies and gentlemen”.
The main risks as I see them are:
1) the potential for indirect discrimination – if the recruiter/employer discounts a candidate on their complete absence from the social media scene this may indirectly discriminate against those parts of our society not on Twitter, Linkedin, Facebook or for that matter without internet access at all (difficult to believe for us Tweeps and Linkedin lotharios, but such people do exist);
2) the potential for discrimination – this is particularly relevant to recruiters and larger employers, where the people at the top of the tree may not have day to day control over the hiring process. While we like to think that we only employ likeminded people that treat others as we would expect, sadly we do have both outright and casual discrimination in our society and social media provides a very easy tool for such attitudes to be practiced on candidates; and
3) the potential for actions to appear discriminatory – where a recruiter/employer discounts a candidate for a perfectly legitimate reason and social media screening has taken place, it may then appear to the candidate that they have actually been discounted in a discriminatory manner (think of somebody active in any particular religion, sexual practice or with other characteristic which is open to discrimination) as a result of something on their online presence.
My tips for minimising those risks while ensuring you are able to do as much business as possible are:
A) don’t discriminate – simple advice, but it needed to be said;
B) don’t discount candidates due to a complete lack of online presence – this may be indirect discrimination (unless you can objectively justify the decision, e.g. you are hiring for a social media consultant and they are not on Twitter);
C) blanket policy/procedure – don’t vary your approach to social media screening according to race, colour, belief, sexual preference or any other potentially discriminatory status of a candidate;
D) don’t breach data protection legislation/confidentiality/privacy/terms of the social media provider – while these are not issues of discrimination, make sure you don’t fall into any of these problem areas;
E) be cynical – a large proportion of what you read online is simply not true.
Barry is a an ex-recruiter, solicitor and partner at Cramer Pelmont LLP and heads up a team that specialises in advising clients from across the recruitment industry.
What I especially like about Barry is that he is always happy to chat without charge. Feel free to get in touch with him: 020 7016 3016, 07780 604 385, bcullen@cramerpelmont.co.uk, http://uk.linkedin.com/in/barrycullen.
PS, You might also like to chat with him about his “Recruiters’ Audit”, which is a free meeting in which he gives advice from a legal/commercial perspective on how to increase agency profits and business value (no doubt while showing off how fabulous they are to prospective clients!).
