Published on February 4, 2009 by Donna Seale
Today marks our last installment in the series on whether employers should be using the Internet to screen job applicants. (Well, at least it's my last post for now. As I've mentioned before, this is an emerging area of the law so I'm sure there will be more to talk about down the road). If you missed the first two posts of the series, you can check out Part One here and Part Two here. I'd also urge you to read the comments posted by Dan Michaluk to Part Two (scroll down to the end of the post and click on "comments"). His comments aligned very well with my thoughts going into this post and they also prompted me to press my thinking further so I thank him for taking the time to contribute.
I'll be honest, when I was first asked by one of my readers about whether employers should be doing Internet-based or social networking-based searches in the recruitment process my initial response was to recommend the opposite of Nike's famous slogan and say "just don't do it". Certainly, in Part Two, I set out a whole host of legal problems that can arise from doing Internet searches in the recruiting process so it would be completely reasonable to suggest you should avoid them like the plague — at least until we have further direction from the law. At this point in my thinking process, I still tend to sit closer to that side of the fence.
But, I also have to be pragmatic. Given that there are employers in Canada already doing these searches (remember that 12% statistic we talked about in Part One), given this is a trend that will likely only increase as time goes on (as shown by what's already occurring in the US) and given that I know the lure of a quick Google search may be just too much for some of you to resist, let's move to looking at this issue from a practical perspective.
If you think you might want to take a peek at what pops up on an Internet-based search of your job applicants, what are the things you should be thinking about in order to minimize your legal liability?
Here are my TOP EIGHT TIPS:
1. Be Realistic
Before you embark on a Google or social networking site search, I think it's important for you to reflect on whether, given who you are as an employer and the nature of the job you are attempting to fill, you really need to conduct these types of searches in the first place. If you're a mom and pop grocery store looking for a part-time bagger, your approach might be very different than, say, if you're the President of the United States looking to cull together your White House team.
Going back to Part Two, you'll want to ask yourself whether a job candidate's online presence, whatever it may be, could somehow come into conflict with the job you are considering hiring them for. If you can't connect the dots, you shouldn't be doing these types of searches.
Remember: just because the information may be out there doesn't mean you need to access it.
2. Maintain the Upside-Down Funnel
Remember in Part Two I talked about how it is always advisable to think of the the information-gathering process relating to your job recruits as an upside-down funnel. You should be ensuring that you are only asking what you need to at each stage to determine whether your candidate moves forward. Too much information too soon plus an adverse hiring decision will increase the chances you'll be faced with a discrimination claim.
With that in mind, it is my view that any Internet-based searches should be done after you have made your candidate a formal job offer.
3. Be Upfront
This point ties in closely with point #2. I think you should be clear with all of your job applicants that if they reach the end of your recruitment process and are offered a job, you will be conducting a full background check. You should indicate what that background check will consist of, including Internet-based searches.
By disclosing this from the get-go you demonstrate that you're not doing anything "behind anyone's back", and you might even have job applicants who weed themselves out because of your disclosure. That might be a good thing (if they, perhaps, have put something out on the web that might not make them a good fit for your organization) or not (you may get quality candidates who just aren't comfortable with employers who do these searches regardless of whether there is anything negative out there about them to find).
4. Establish a written process
The saying "the best defence is a good offence" applies as equally to mitigating your legal risk as it does to the sports world. By this I mean that it always helps to have a written document that you can point to in your defence against litigation setting out what you did and didn't do in relation to any particular process you adopt in your workplace.
Here, you'll want to give thought to setting down in writing the following:
a. what Internet-based searches will be run;
b. what information yielded by those searches will be examined and why;
c. how you will assess what may be discovered;
d. what use will be made of that information;
e. how you will document any information relied on for the purposes of the hiring decision.
You'll really want to give a lot of thought to developing your search criteria so you can show a human rights commission, tribunal or civil court that you weren't just going on a fishing expedition and that there are tangible job-related reasons why you conducted these searches in the first place. Most importantly, from my perspective, you always want to be able to demonstrate that you only looked into what was needed to appropriately judge your job applicants on the basis of personal merit. The more tightly honed your search criteria, the greater the likelihood that it might be found reasonable upon review.
In terms of record-keeping, as pointed out by Dan Michaluk in his comments to my Part Two post, you'll want to retain a hard copy of any information generated by Internet-based searches that meets your search criteria. The hard copies should be placed on your recruitment file. As Dan notes:
"This should keep the decision clean of irrelevant and risky information and should also eliminate any risks of getting into disputes about production of search-related forensic information."
5. Have someone other than the decision-maker do the searches
To ensure that the person who is making the decisions as to who gets hired and who doesn't is only able to base the decision on the best (read: legally sound) and most relevant information it is advisable to insulate him or her from any Internet-based searches being done. In other words, the decision-maker should never do the searches. Keeping the decision-maker insulated in this fashion helps insulate the hiring decision from legal criticism.
Of course, you'll want to ensure that whoever does do the searches is fully apprised of your written process under point #4, and is clear on what they need to do to abide by the law when conducting the searches and determining what information should and shouldn't be passed onto the decision-maker.
6. Be Consistent
Ensure that you apply the Internet-based background checks equitably to all candidates to whom you've made a job offer. If you don't, you might find yourself faced with a discrimination claim on that basis alone.
Similarly, once you embark on doing these types of background searches either for all or just particular jobs in your workplace (again, keep in mind point #1 above), then do them consistently. If you do them some times and not others, it begs the question why. And a human rights commission may well be interested in finding out.
7. Be as fair as possible
I think it would bode well for an employer to give job candidates the opportunity to respond to any concerning information generated by the Internet-based background check. Given the concerns I raised in Part Two about ensuring the accuracy of information gathered on an Internet-based search, it seems to me that this would not only be fair but a wise approach as well.
8. Document the decision
Once the Internet-based searches are completed and any pertinent information given to the decision-maker in your organization, ultimately, the final decision on hiring should be set out somewhere in clear terms. Explain your rationale for choosing a particular candidate, rejecting another. You want to be prepared to establish why you made the decision(s) you did and to show that inappropriate considerations, specifically prohibited grounds under human rights legislation, played no factor.
Parting Thoughts
While I started this series of posts in response to a question from a reader, in the end, my purpose turned out to be much broader than that (if the length of my posts didn't tip you off to that before, now you know!). Once I started looking into this issue and learned that there were Canadian employers out there already doing these types of searches, it became concerning to me that they may well be doing them without fully understanding their legal risks.
I hope that I have been able to arm you with information so you know what the issues are (at least as they appear to be at this early stage) and that I have spurred you to think about how to address them if you choose to make the decision to venture into conducting Internet-based searches on your job candidates. At the very least, you should think first, do second and most importantly, do after you have received the appropriate legal advice specific to your situation.
Until next time!
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Donna M. Seale B.A., LL. B.
Human Rights Lawyer
and Educator
