Pre-employment background checks. It’s tempting to check out candidates online. Facebook, Twitter, LinkedIn and Google are full of public information available in just a few clicks. Élaine Léger and Karine Fournier, two labour lawyers with Fasken Martineau, note that the legal framework of such searches is the same as in the real world, however.
Recruiters do not use the Internet solely to post job ads. According to a study conducted by Harris Interactive for Careerbuilder.com, 28% of Canadian employers use Facebook, Twitter, LinkedIn or simply Google to make pre-employment background checks, and 26% have rejected applications on the basis of what they found. “An increasing number of employers consult us after the fact to know whether they are allowed to seek out information on a candidate online and whether they can use it to reject the person,” Élaine Léger and Karine Fournier observe.
Among the 26% who have turned down a candidate after a few online clicks, half say they became aware that the candidate had published confidential information about former employers online. Others found discriminatory (38%) or alcohol-related comments (36%). The fourth reason cited by recruiters was lying about qualifications (26%). ”The first three reasons are questionable, because there has to be a link to the job for them to be valid,” Karine Fournier stresses, reiterating that the “same laws apply” to recruiting in both the real and virtual worlds.
Legal provisions
Sections 10 and 18 of the Charter of Human Rights and Freedoms govern gathering information on a candidate. “These sections stipulate that an employer cannot gather information for reasons that are deemed discriminatory, such as race, gender, age, religion, ethnic origin, or handicap, unless this information is justified by the nature of the position to be filled,” Élaine Léger specifies. A bar manager can ask a waiter’s age, for instance, to make sure he or she is over 18.
The Act respecting the Protection of personal information in the private sector completes the legal provisions. Sections 2, 5, 6 and 9 allow a recruiter to check or to have checked the information provided by candidates, “if there is a serious and legitimate interest in doing so.” The information must be gathered lawfully and be “necessary to the subject,” in this case the position to be filled. Candidates may, for their part, refuse to answer, if they deem that the information requested is superfluous.
Pre-employment background checks: A question of necessity
“It’s a question of determining what is necessary and what is not,” Karine Fournier sums up. “At the hiring stage, what’s necessary is to assess the candidate’s qualifications and aptitudes,” she adds, with the reminder that a discrimination suit can have “weighty consequences in terms of image for the company.”
To avoid this escalation, Élaine Léger advises “sticking to objective criteria defined prior to” the recruiting campaign. “If you find out a disturbing fact about the candidate and want to discard the application,” she continues, “always ask yourself whether the information is useful or necessary, and be very careful about the reasons you give for refusing the candidate.”
Facebook: Public or private domain ?
La Commission des lésions professionnelles (C.L.P.) has just ruled that “what is in a Facebook account is not part of the private domain,” and that therefore, Facebook proof “is not an invasion of privacy of third parties.” The principle is simple: when you post freely available information online, you give up your privacy and the accompanying protection. On the other hand, “It is forbidden to use subterfuge to obtain this information, by bribing a candidate’s Facebook friend to access their profile, for instance,” Karine Fournier emphasizes.
When to do pre-employment background checks ?
Two types of behaviours are observed. Some employers perform informal checks, only if they have doubts upon reading a resumé or during an interview, while others perform checks systematically. “It is best to have a formal protocol to follow on using information gathered online,” Élaine Léger says. She recommends awaiting the outcome of the job interview before conducting any searches, so as to “avoid unnecessary investigations.” The protocol must define the criteria that justify a check, the type of information to seek out online, who does the research, and the terms for using and keeping the information.
Consent and follow-up
In absolute terms, and to avoid any potential misunderstandings, it is best to obtain the candidate’s consent, or “at least inform the candidate that you will be checking the information he or she provided,” Karine Fournier observes. Should the candidate turn out to have lied, three criteria should be considered to decide on what to do with the application: the link between the misrepresentation and job duties, the fact that the employer would not have hired the candidate had the truth been known and the intentional nature of the misrepresentation.
“The triggering of a search and the refusal to hire that may result must be decided on a case-by-case basis,” Élaine Léger emphasizes, warning recruiters that “Online information is not always reliable. You can’t take everything at face value, nor can you rely solely on information gathered online.”