Don’t investigate employees on Facebook, expert warns

Businesses should avoid using social networking sites such as Facebook, Twitter and MySpace to investigate the personal details and histories of prospective employees, a legal expert has warned.

Bronwyn Maynard, senior associate at Harmers Workplace Lawyers, has said that employers must be aware of legal obligations under the Privacy Act, and employee rights under the new Fair Work legislation, in regards to social media.

“Whenever an employer or recruiter collects personal background information on a candidate, that action triggers a raft of legal obligations under the Privacy Act. Those obligations include that an employer must inform the candidate that they have gathered personal information as well as explain the purpose for which the information was gathered and to whom it may be disclosed.”

Maynard also said that businesses must only collect personal information that is necessary for the business, ruling out information on a social media page that is not relevant to the employee’s job history or ability to work.

Failure to comply with these laws, Maynard says, leaves companies open to disciplinary action taken against them by the Privacy Commissioner, and even possible legal action.

As a consequence, she says businesses must be very careful about trawling social media for employee information.

“While I can understand that employers or managers might be tempted to find out about a candidate’s social life and personal details online, responsible employers need to very carefully consider if this sort of personal information is truly relevant and necessary for the selection process.”

The new “General Protections” section of the Rudd Government’s Fair Work Act, also provides another trap for employers.

Maynard gives the example of an employer who used a social media site to discover that a candidate had made a sexual harassment or unfair dismissal claim against a previous employer. If the employer decided not to employ that candidate because of this, the candidate could claim a breach of the General Protection section on the basis that adverse action was taken against them for exercising a ‘workplace right’.

Maynard also says businesses should be aware that candidates are well within their rights to request access to personal information that has been gathered about them, and noted that several businesses have banned gathering information on social media altogether.

“They avoid many of the legal implications from potential misuse of this information.”

Due to the high legal exposure of collecting personal information on social media, Maynard said it is critical for employers to develop a policy on obtaining information through social networking sites.

“If the relevance of particular personal information is questionable, it is advisable for employers not to collect that information. Unless personal information is specifically relevant to that person’s ability to undertake that role, or work for that specific business, then the legitimacy of recording or using that information is seriously under question.”

See today’s Aunty B to read about an employer contemplating this moral dilemma.