Social media is a legal minefield.
Facebook and Twitter may have seemed like an innocent workplace distraction a few years ago, but they've transformed into something more complex – and potentially dangerous.
Businesses have already discovered how ambiguous the law can be when dealing with comments written by staff online, but there's a completely new frontier they have to wade through now – prospective employees.
It's common now for a prospective employer to look through an applicant's social media profiles before confirming an interview. After all, that's partly why sites such as LinkedIn were created in the first place.
But there's a bigger issue at hand. Legal experts are now warning employers to be extremely careful when looking up prospective employees, as any information you look up could potentially lead to a nasty discrimination case.
"The law is problematic in this case in that it doesn't offer any real direction," industrial relations law expert Peter Vitale says. "Clearly material such as this is not open to Privacy Act considerations and any employer would be silly not to use these resources."
"But there are some areas for concern...it would be foolhardy to say there is no issue at hand."
The growing popularity of social media recruitment
Social media has made a huge impact on human resources. According to a new survey from Randstad, 26% of Australian respondents use social media for recruitment, with 60% considering LinkedIn an important tool. Just over a third also said Facebook was important as well.
Randstad business manager Nicole Stafford says it's not just useful for businesses to use these types of tools – it's becoming accepted as an industry norm.
"Many businesses are using these now, and it creates this atmosphere of transparency. If you have these facilities at your disposal, why wouldn't you use them?"
Certainly there's a lot to learn from looking up an applicant's social media sites. Looking up a profile on LinkedIn can give a more comprehensive view of their history, connections and industry activity. And viewing their updates on Twitter can give key insight into their work ethic and personality.
"There is plenty to learn there," Stafford says. "It's just a matter of getting involved and looking up what's going on there."
Businesses certainly shouldn't feel coy about using those materials. M+K Lawyers principal Andrew Douglas says there have been cases that clearly show whatever's been published in social media could be used.
"If you've published something on social media and you've not tried to keep it private or confidential, the fact it's found is just the nature of the internet."
"Your comments are on the market."
What's the risk?
The risk surrounding social media is that an applicant will discover a prospective employer has viewed one of their social media profiles and has used something found there as a reason not to hire them.
For some pieces of information this could be understandable, these experts say. For instance, if they found that person had been engaging in criminal activity. Or, as Douglas describes, if you're looking for a typist and a person can't spell properly.
But there are lots of grey areas. For instance, if an employer finds a prospective employee has been heavily involved in a union or even if they're pregnant. Vitale says these situations are far less clear cut.
Employers may ask why this would even matter. After all, it's difficult or nearly impossible to prove that a potential employer visited a public profile.
But under Australian law, the burden of proof lies on the employer to prove they did nothing wrong.
"We have general protection provisions here that contain a burden of proof, so it's entirely possible for a candidate who has been rejected to go to the tribunal and say their profile was accessed, it's clear they are a union member, and they didn't get the job," Vitale says.
"Whoever is responsible for making those decisions would have to, in the event of a claim, provide evidence that they weren't motivated in any way, shape or form by any of these considerations."
A case before the High Court – the Barclay matter – is dealing with this very situation, although it must be noted social media recruitment is not a part of it. The case concerns a claim that an employee was subject to adverse action because they were a union official and had engaged in industrial activity.
Vitale explains that as lawyers await the outcome from the High Court, there is some ambiguity about the burden of proof.
“This is itself a subject of some controversy, because there are questions around what evidence would be sufficient in order to trigger a reverse onus of proof.”
“Someone who has access to these profiles would be silly not to use them. But an employer who views a social media profile might misinterpret what they saw.”