Is it legal to conduct a social media screening prior to hiring?

Social media has become an integral part of our everyday life, so much so that no business can escape the omnipresence of these platforms. They’ve become essentials for promoting an employer’s brand during the recruitment period and raising awareness of the services offered.   

The rapid expansion of digital media has introduced society to the phenomena of extreme connectivity and the need for information. Humans, being curious by nature, are increasingly demanding access to knowledge and information. Several worldwide surveys have been conducted to examine the habits of recruiters and human resource consultants regarding their use of social media. The results show that 60 to 90 percent of hiring managers check a candidate’s social media profile or search for information about them on the web […] (Michaud, Foucher, Bourgault;2019).  

Why undertake social media screening as part of a pre-employment verification? 

The first rule in background screening is to target the relevant information you want to confirm to ensure consistency throughout the process, while respecting the candidate’s privacy. Therefore, we recommend doing a social media checkup for specific positions such as manager, since this is someone who must represent the company in public, or for a position that is confidential or sensitive in nature. Employees represent the face of the company and the greater their responsibilities, the more important it is for them to embody the company’s values. After all, they are brand ambassadors.  

The purpose of this verification is to analyze the candidate’s behaviour in the public sphere, determine if they have any affiliations with groups whose views do not correspond with the company’s values (racism, homophobia, xenophobia, etc.) and to gain better insight of the person applying for a position. It’s important to keep in mind that social networks, aside from LinkedIn, serve mostly for personal use, so their content is not reflective of the person’s skills, but rather a source of information.    

Using social media when recruiting candidates is a delicate process. It is necessary to understand the legal issues in order to respect the individual’s rights as defined in the Charter of Human Rights and Freedoms (C-12) and the Act respecting the protection of personal information in the private sector (P-39.1).   

What are the legal limits?  

When conducting this type of screening, it’s important to apply the best practices to avoid infringing on the candidate’s rights.  

The first thing you should know is that when checking social media, you can only make use of publicly available information. The content of any platform requiring to be “friends”or the approval to follow the account could be considered private data.  

You should also keep in mind that the information found on a candidate’s personal online account is not necessarily completely true. In fact, it may be inaccurate, outdated or not representative. Therefore, it’s important to be cautious when collecting information, especially with anything that could affect the hiring decision.  

In addition, the Charter of Human Rights and Freedoms states that under no circumstances must any of the following grounds be taken as a factor in the hiring process:

  • Age 
  • Gender identity or expression 
  • Pregnancy 
  • Sexual orientation  
  • Ethnic or national origin 
  • Skin colour 
  • Language  
  • Religion  
  • Marital status  
  • Political beliefs  
  • Social condition  
  • Handicap or the use of any means to palliate a handicap 

Suggestions and recommendations   

Social media screening is useful in some specific hiring situations; however, you must ensure a good candidate experience throughout the background checking process. The best way to prevent a potential employee from feeling spied on is to take a logical approach that is consistent with the position in question. 

Furthermore, it’s crucial to respect the legal limits in place to avoid infringing on the applicant’s right to privacy. Also, once the hiring process is complete, it’s important to inform employees of internal policies regarding the use of social media, since inappropriate behaviour can lead to major consequences for those who don’t respect them.  

We recommend to all employers wishing to do social media screenings that they contact our pre-employment specialists to ensure that the information obtained complies with current laws. 

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Camille Robert 31 Oct, 2022


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