Quarter of managers use social media to screen candidates, but legal expert urges caution on discrimination laws

An industrial relations lawyer says that while employers are free to use the information available on social media sites to vet potential employees, they should be careful of falling foul of the anti-discrimination laws.

The warning comes on the back of Telstra research that found more than a quarter of the 1,255 recruiters surveyed use social networking sites to screen job candidates, and more than half of these admitted to having turned away prospective employees based on something they’ve seen on Facebook or Twitter.

The most common reason for this was candidates posting discriminatory comments (37% of employers said this counted against applicants) and inappropriate pictures (31%).

However, the findings also found a third of Australian employers who screen social profiles had hired people based on positive things they had seen online.

Industrial relations lawyer Peter Vitale told SmartCompany that most of the information available publicly on social media profiles was fair go for recruiters.

“It seems to me that if the material is published and people haven’t set their security settings to limit who can see what’s on their profiles… it’s a perfectly legitimate thing to do,” he says.

Vitale says a lot of relevant information could be gathered from social media profiles.

“For instance, the fact that there might be particular job experience disclosed on a website that’s not reflected in an applicant’s CV is a legitimate thing to question,” he says.

“The only potential issue would be if the information discloses matters which might result in the candidate having a characteristic which might form the basis of discriminatory conduct.”

“For instance, if the material indicated that a person was ill, and the employer took that into account, there might be potential anti-discrimination issues.”

He also cautioned against using information protected privacy settings.

“If it’s private, you’re getting into questions of whether or not there’s any attempt to access personal information which might be protected by the Privacy Act,” he says.

“But that may be more of an issue for people that run sites like Facebook rather than the people who gather the information.”

Vitale acknowledged some might have ethical issues with his support of using social media to vet potential employees.

“Some people would say people innocently put their personal information on the websites and it should continue to be respected as personal and private. Until they change the law, I don’t believe that’s right,” he says.

“I’m not sure how far the law should go to protect people from themselves.”

Vitale says when it came to recruiting, there have been no legal cases testing how far employers can go in using information gleamed from social media.

But the broader link between conduct on social media and employment has been established legally.

“We’ve seen employers successfully rely on information that employees are absent from work, for instance employees that claimed to be off work sick, employees can rely on that to support dismissal,” Vitale says.

In August, Fair Work Australia found that an employee’s use of Facebook to post abusive comments about a manager at his workplace was grounds for dismissal even though they were posted on a private profile, as the comments could be seen by other workers at the company.