Home' HR Monthly : February 2018 Contents 46
Résumé and reference checking seem beige
compared with the vast and sometimes
colourful information available through
Google and social media. But old-school
methods of checking credentials are unlikely
to leave you open to discrimination or adverse
action claims -- both possible when you dig up
and then use information about prospective
hires through online information mining.
The temptation to cyber-vet potential
employees is understandable, and you may find
relevant background information on experience
and skills, such as some articles a candidate has
published -- useful if writing is important to
While managers and others involved in the
recruitment process (especially those who
see themselves as tech savvy) may think that
cyber-vetting candidates is harmless, just
because checking out someone's online footprint
is easy, it doesn't mean it is risk free. What do
employers need to know, and what do you tell
managers contemplating electronic voyeurism?
The Australian Privacy Principles (APPs) don't
apply when viewing personal information
relating to current or past employees because
the employee records exemption applies. But
the APPs do apply to personal information you
collect about a candidate for employment.
Any screen dumps from Facebook or pictures
printed from Instagram count as personal
information. You may argue the information
is not private -- it is freely available on a public
forum -- but the Privacy Act 1988 defines such
material as personal information.
It gets interesting for employers who print
such information and file it away with a
candidate's application. The candidate has the
right to access that information under the APPs,
which can only be refused on certain grounds.
So be careful about the information that is
collected and filed.
Collecting information online is one thing,
but the big issue is how it informs your selection
decision. For example, reviewing an article
a candidate has written, or something else
relevant to the role they have applied for, is
probably fine. But you must ensure nothing
is considered that could amount to unlawful
discrimination or breach adverse action
provisions in the Fair Work Act 2009.
What might be a problem? Consider viewing
someone's Facebook page and noting they
have three-month-old triplets. You may worry
-- understandably -- that parenting may clash
with the job's demanding travel requirements.
You may conclude it's not possible for the
prospective employee to manage regular travel
and three babies, and strike them from your
But what if the applicant demands to see
a copy of their file when they are denied an
interview? They see the Facebook printout and
happy snaps of the triplets, and wonder why this
personal information is present. The employer
may try to rationalise the concern about
combining the role with their obvious carer's
responsibilities. But to the applicant, this sounds
like a whole pile of assumptions. Suddenly, the
employer is in unlawful discrimination territory.
Checking you out
Want to know about differences between the Fair
Work Act and Disability Discrimination Act?
AHRI:Assist is an exclusive member benefit.
Similarly, if you have reached conclusions
about somebody's sexual preference, political
beliefs, religious beliefs, or any other protected
characteristics based on what you have seen
online, you have discrimination risks.
Cyber-vetting may also expose employers to
adverse action under the Fair Work Act.
For example, you Google the name of a
prospective employee and find their unfair
dismissal case against their previous employer.
You review the decision to find out more, and
even though they won their case, you worry
that, given they have made a claim once, they
might do it again. You get cold feet about
hiring them. This is an adverse action claim
waiting to happen as you have made a decision
(not to employ them) because they have
exercised a workplace right (challenged the
decision made by their previous employer to
terminate their employment).
Who's cyber-vetting who?
Finally, remember your cyber investigations
are not necessarily conducted in secret. You are
likely leaving a cyber trail all over the place,
which may be used against you. It's possible you
end up being cyber-vetted by the people you
were cyber-vetting in the first place. •••
Cyber-vetting prospective hires is
common, but caution is needed.
BY KYLIE GROVES PARTNER, HALL & WILCOX
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