With employers increasingly scanning social media sites to assess the cultural fit and aptitude of prospective employees, Charles Power, a workplace relations partner at Holding Redlich, has warned that employers need to document any information they garner from social media.

“If the information contained on the Facebook or Twitter page is linked to a protected attribute under state or federal discrimination law, such as an involvement in ... a political or religious group, if that’s a factor in the recruitment decision you’ll be exposed to a discrimination complaint,” said Power.

For this reason, employers should document the information obtained from social media and used in assessing candidates, he said, and make sure it has direct relevance to the job requirements.

Information that it is acceptable to glean from a candidate’s social media page includes: spelling, discretion, composure, maturity and presence, said Power.

Under the discrimination provisions in the Fair Work Act, there is a reverse onus of proof on the employer to prove the manner in which the recruitment decision was made.

“Those questions of proof can be difficult when there is nothing in writing or documented about it,” said Power.

Federal Attorney-General Nicola Roxon proposed in November that that reverse onus of proof be replicated in the federal discrimination laws. That move generated widespread criticism in the media and from the likes of former NSW Supreme Court Chief Justice Jim Spigelman, who said the plan was overreaching.

Power argued the move would strengthen the human rights enshrined in the legislation and reinforce to employers that they need to have readily available evidence to prove how they make decisions when hiring, managing performance or misconduct, or firing.

“You need a paper trail these days,” he said.

Virtual privacy

The Privacy Act is another avenue of legal exposure for employers who use social media to gather information about prospective employees. It does not apply, however, if no record is created of the information gleaned from a public blog or social media page.

 “If a person is stupid enough to have photos on Facebook which reveal a side to them that suggests that they might not be a suitable cultural fit then the Privacy Act doesn’t apply if the employer just has a look and decides not to hire [them],” explained Power.

“It really depends on how you want to do it but it’s probably best to be really upfront about the fact that social media will be a source of information; to make that clear to the employee, to get their consent and then to have a proper note if the social media search is undertaken as to what information was considered material,” he said, adding that if a candidate’s social media page is set to private then an employer has no right to access it.

Most Australian companies claim they do not request social media login details but “apparently in the US it’s a phenomenon”, said Power.

“The reality is in Australia you’d probably be told to shove it if you asked for someone’s login details.”

Employers have only a vague understanding of the issues around privacy, said Power; the reason being, he said, the “soft touch of privacy legislation”, which is more concerned with issues like credit card and social security information.

However, the Australian Law Reform Commission’s proposal to reform Australia's Privacy Act has been accepted, in part, by the Government.

Power said this indicates a renewed commitment by the Government to strengthen principles of privacy given the extent to which social media is now used in recruitment and the way in which personal information is shared on the internet nowadays.