CACEE Conference – The law and ethics of recruting in today’s wired world

I had the honour of presenting today at the Canadian Association of Career Educators and Employers national conference. My topic was called “The law and ethics of recruiting in a wired world,” and we spent most of the session talking about online speech. The discussion ranged and was great throughout, but the time we spent on recruiting and online speech was extremely enlightening thanks to the great attendee input.

I broke the recruiting and online speech issues into privacy issues and employment issues.

On privacy, I suggested that authorization, accuracy and openness are the most relevant fair information practices. I urged the participants to consider what reasonable steps a recruiter should take to ensure the accuracy of personal information collected from online sources and used in making recruiting decisions. I also suggested that the openness requirement demands that candidates know that their publicly available information may be collected in the recruiting process. On further thought, the necessity principle is also highly relevant, and I think recruiters are naturally inclined to respect the rule, “If the information is not needed, don’t ask the question.” Applying the necessity principle to the online search issue, it seems to me that such a recruiting tactic can only be justified where the job raises a reasonable possibility of conflict between an employee’s online presence and his or her job duties.

On employment law, I started with a thought about addressing foreseeable conflicts of interest at the outset of the employment relationship. For employees who have personal blogs, for example, I suggested that employers would benefit by assessing them for potential conflicting interests and resolving potential conflicts as part of contracting for employment. Sensible and fair, but doesn’t this entail looking into candidates’ online presence as part of the recruiting process? In this regard, my suggestion caught the audience slightly off-guard because they were all very wary of the potential for human rights liability associated with using the internet to screen candidates. True enough!

You see, recruiting processes are typically structured to minimize the risk of considering irrelevant and discriminatory factors. They are also purposely staged so that discriminatory factors that are relevant are considered later in the hiring process. Based on anecdotes from members of the audience, it seems to be that the online speech phenomenon is disrupting these processes and causing recruiters to lose control of the information that becomes part of an assessment. We heard stories of recruiters who are being sent information from groups supporting student candidates that use new media very creatively, but contain pictures and all sorts of personal information that a recruiter would never require of candidates. It’s not that this information is necessarily related to one or more of the personal characteristics protected under human rights legislation, but when you don’t know exactly what information you’re going to get there’s certainly a heightened risk of of poisoning your pool of assessment information with irrelevant information that could be used as the basis for a discrimination complaint.

The idea of Google searching candidates also raises difficult records management issues. A defendant in a hiring dispute wants to be able to say, “Everything we considered is in the file.” Add an internet search into the assessment process and, unless there is a rigorously-enforced and forensically sound protocol for recording the search on the formal record, the electronic discovery burden of defending a hiring dispute will be relatively significant.

Despite all the risks, I’m hesitant to take an absolute position against collecting information about candidates’ online presence. If a candidate has an online presence that could conflict with the fulfillment of his or her job duties, doesn’t the diligent employer take reasonable steps to find that out before entering an employment contract? One way to reduce the human rights risk is to conduct the search near the end of the assessment process as a form of background check. There are likely other means of managing the human rights risk, which is not to discount the steps that should also be taken in order to ensure respect fair information practices.

If anyone can work out a model that enables employers to use relevant and available information about candidates in a manner that respects individual privacy and human rights, it has got to be the great group of professionals from CACEE that I was able to join today. Again, it was an honour!

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