Recruiting on Social Media and the DPA

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Businesses everywhere are taking advantage of the many benefits of social media, but its popularity is creating workplace issues as the boundaries between employees’ personal and work lives continue to blur. In this article, we will discuss some of the legal issues created by employees’ use of social media and the Data Protection Act, and we will also discuss some potential solutions.

Monitoring Employees’ Online Activities

According to a December 2009 study, less than 15% of potential employees believed that information from their social media accounts could affect their likelihood of finding a job. Meanwhile, over 40% of recruiters said that they’d rejected applicants based on information found online. Whether online monitoring takes place before or after hiring, employers should consider its effect on the employee’s privacy. Employers also need to follow the rules set forth by the 1998 Data Protection Act to avoid potential litigation.

 An Employee’s Right to Privacy

Under the European Convention on Human Rights, employees have the right to privacy when interacting socially and furthering their relationships with other people. However, a recent court case upheld a firing that took place after an employee made disparaging comments about their employer on Facebook. The ruling stood because the company had a firm social media policy, and because the employee had no reason to believe that their comments would remain private.

Situations can differ if the employer ‘investigates’ without the employee’s knowledge, or when the employee was not responsible for content posted under their name. In those limited circumstances, employees retain their rights to privacy, and employers will be forced to prove that the interference was proportional to the threat against the company.

Protection of Personal Data

The Data Protection Act strictly regulates the processing of employees’ personal data. Information such as race, political affiliation, sexual orientation and beliefs is highly protected; an employee’s social media profile typically contains such information. When an employer checks a new hire’s profile, they are using that information for purposes set forth in the DPA.

Use of Personal Information in Employee Dismissals

There may be cases where an employee’s social media conduct may be grounds for termination. Each case’s facts are different, and as long as an employer has well-defined standards, the dismissal will stand. In cases where the employee’s actions take place ‘off the clock’ or where they only threaten the company’s reputation, a dismissal’s validity will depend on the following:

  • The actual level of damage to the employer
  • Whether any workplace rules were broken, and/or the seriousness of the violation
  • Whether the workplace has a specific social media policy, and whether the employees are kept up to date
  • Whether the conduct was in conflict with the employee’s job description
  • Whether the dismissal is a proportionate reaction to the circumstances

Fair Use Policies

The majority of social media activity occurs on the employee’s own time and/or their own equipment; therefore, blocking or banning social media entirely isn’t an effective solution–and it’s very likely to be unfavorable with employees. A more effective remedy is to remind employees that everything they post is public, and to implement a reasonable use policy. Such a policy could stipulate:

  • Time limits on access
  • Notice of the monitoring practices to be used
  • Restrictions on the disclosure of trade secrets and other confidential matters
  • Reminders not to make disparaging comments about the company, the workplace or its clients
  • Cautionary statements on ‘off the clock’ social media use which may damage the business’ reputation

QT&C, the authors of this guide, provide courses in data protection and FOI training for businesses.

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Image Courtesy: Brands Must Get Social Media Right

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