Conducting social media screening on a candidate is becoming an increasingly common practice in the hiring process. Despite the common perception that data in the public domain can be used freely, using data from a job applicant’s social media account may not always be consistent with the current data protection laws in Hong Kong. In particular, the way that information collected from social media is used by an employer when screening their candidate may increase the risk of allegations of unlawful discrimination.
Social media screening is allowed, however, the protections afforded by Hong Kong law applies to all personal data obtained from the public domain, including information obtained from social media. The Personal Data Protection Ordinance (“PDPO”) requires individuals to consent where their personal data is to be collected and used for a purpose which differs from the original purpose for which their personal data is in the public domain. Despite this, there have been various reported complaints to the Privacy Commissioner on the use of organizations obtaining publicly available data without consent. Thus, the safest approach for companies is to ensure they always gain consent from their candidate before collecting any social media data about them. In consideration of values such as equal opportunity, organizations should review whether their interview questions, application forms and social media checks are directly related to the requirements of the role, and that they do not collect irrelevant information about the protected attributes of their candidates when make hiring decisions. Nevertheless, information that is gathered from social media may often reveal a candidate’s protected attributes—such as their race, gender, sexual orientation, disability or political affiliation.
In Hong Kong, and typically in various other countries, it is unlawful to discriminate against a job applicant based on their protected attributes. With this in mind, if a candidate with a protected attribute is unsuccessful in their interview, and the role is given to a candidate with similar experience but without the protected attribute (such as having a disability), a court or tribunal may infer that data collected from his or her social media was in some way used in forming the company’s hiring decision, as it would not have otherwise been collected. Unless it can be proved that the candidate is not able to perform the inherent requirements of the job, or that providing services or facilities to help him or her to perform the job duties would impose unjustifiable hardship on the employer, an immense challenge arises for companies that want to disprove their hiring decision as discriminatory against the unsuccessful candidate.
Employers should additionally assess whether social media screening is, in fact, necessary based on the candidates’ role, and if so, to what degree or frequency should they conduct social media checks, and compare whether the checks applied against their candidates are consistent and fair in comparison to how they screen their current employees. While employees are entitled to choose how they spend their time outside of work, their conduct outside of work may impact their ability to fulfil the requirements of their role or negatively impact the company. For instance, having bad conduct online such as publishing threatening posts or publicly divulging confidential information about the company may justify disciplinary action including termination of employment. In this case, expectations around social media use and the consequences of certain behaviors online should be made clear to employees and any response should be proportionate and justified in the particular circumstances.
For companies that conduct in-house social media screening on their candidates, risks involving HR or employers gaining unauthorized access to view a candidates’ social media may arise. For instance, accessing private posts through the social media account of an applicant’s or recruiter’s common acquaintance or by using a fake profile can lead to substantial backlash and can have a long-lasting impact on a companies’ ability to attract and retain talent. When appropriately executed, social media checks undoubtedly provide companies with valuable information on their job applicants such as behavior or work ethic indicators that may help reduce risks of company damage and protect employees and customers from the setbacks of a wrong hiring decision.
Social media screening has certainly enabled HR professionals to work smarter, however, it comes with big responsibilities that should not be overlooked. Conducting in-house checks are often time-consuming and may likely produce an uncomprehensive, false or even discriminatory outcome when not handled by an expert. Assigning social media checks to in-house staff, who are probably not as well-informed with data privacy laws or as experienced as a professional background screening provider, can potentially cause legal and ethical problems for an organization. Therefore, it is recommended that employers hire third-party experts such as background screening firms and additionally lay out the gaps in their formal hiring process that they want to fill by conducting social media checks, as well as whether that serves as an effective gauge of a candidates’ qualifications and suitability for the position. With recent changes and updates to data privacy laws in countries like Singapore and Hong Kong, knowing your legal rights as an employer and those of your job applicants can be complex and hard to stay compliant with due to constantly evolving requirements. To ensure your social media screening is conducted effectively and to update your background screening processes with a globally trusted and leading screening provider, speak to Cisive today.
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