Social networking sites such as Facebook, Twitter, MySpace, LinkedIn and Bebo have seen massive growth in recent times, with an increasing number of people interacting online. This new age of social media brings both opportunities and challenges.
Social networking sites contain a plethora of information. For some employers, it will be common practice to look up job applicants online when they are recruiting. For example, a "google" search has become a standard form of reference checking.
A new trend has emerged whereby prospective employers go a step further - requesting applicants to provide their "log in" details to their social networking profiles. However, this practice raises a number of legal and ethical considerations, including privacy concerns and possible exposure to complaints of discrimination.
Facebook discourages the tactic, warning employers that requesting an individual's password risks invading their privacy and exposure to other liabilities. In addition, the mainstream social networking site threatens legal action against any party who shares passwords.
Press reports last month featured a New York City statistician, Justin Bassett, who was asked for his Facebook username and password during an interview for a new job.
After being asked a number of character questions, the interviewer turned to her computer to search for Mr Bassett's Facebook page. When she couldn't see his private profile, she asked him for his login information. Mr Bassett refused and withdrew his application, stating that he did not want to work for a company that would seek this personal information.
Tips for prospective employers
Best practice for prospective employers wanting to research candidates online (via the internet and social networking sites) is to:
ensure that online information is corroborated by more traditional sources such as the candidate's CV, reference checking and face-to-face interviews;
limit searches to publicly available information;
confine inquiries to job-related searches, and refrain from gathering information that relates to any prohibited ground of discrimination. Beware of online searches that may unwittingly collect information that is not related or relevant to a job vacancy;
record an objective (non-discriminatory) reason for not selecting any unsuccessful job applicant.
Is the information accurate?
Employers should be wary of relying too heavily on online information.
The accuracy of online information may be questionable. The worst case scenario is an applicant who deliberately posts false information on the internet to mislead a prospective employer into giving them a job. What's more, a new practice has developed of "clearing" a person's online reputation so that when an employer searches an individual, for example, only positive information appears.
What about privacy?
While publicly available information is generally fair game, other personal information requires caution. Depending on a candidate's social networking site privacy settings, it is likely that some posted information will be publically available, and some will not. Further, a personal profile may not only reveal the owner's personal information, but also personal information concerning their "friends".
"Personal information" is defined widely in the Privacy Act 1993 as "information about an identifiable individual". Arguably, it could cover all information on an individual's social networking profile.
Prospective employers, like actual employers, are subject to a number of privacy principles in relation to collecting individuals' personal information. In particular, personal information that is not publicly available:
should be collected directly from the person unless they agree otherwise or collection from another source would not prejudice their interests; and
must not be collected by unlawful or unfair means, or by means that unreasonably intrude on the individual's personal affairs.
Clearly, a job applicant should not be tricked or pressured into giving access to their social networking page. However, as the law stands, and putting aside the issue of what message it might give applicants, there is nothing to stop an employer from asking a candidate for access.
Risk of discrimination claim
Recruiting employers who search social networking sites should beware of potential exposure to discrimination claims under the Employment Relations Act 2000 or Human Rights Act 1993.
The legislation sets out a number of prohibited grounds of discrimination - age, gender, marital status, sexual orientation, race etc. As information on an individual's social networking site tends to reveal whether they fall within a protected group, an unsuccessful applicant could bring a discrimination claim based on an employer's access to their online information.
How would they know? An individual could exercise Privacy Act rights to access personal information held by a prospective employer in an attempt to collect evidence in support of a discrimination claim. Information on file relating to one or more of the prohibited grounds could give rise to an inference of unlawful discrimination in relation to a candidate's unsuccessful application. The burden would then fall to the employer to defend its actions.
For more information regarding the impact of social networking on employment relationships, see our October 2010 newsletter "Inner thoughts in a public forum – pros and cons of social networking."
For further information, please contact your usual Bell Gully adviser or:
This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.