The Department of Public Service and Administration recently announced that it would begin screening social media posts before hiring prospective employees.
While this has come as a shock in some quarters – according to Tracy Robbins, an associate at Baker Mckenzie, South African private companies have been screening job applicants through social media platforms for quite some time.
“Although the advisory note issued by the Department is purely what the name suggests – advisory – any employers who make use of social media (and other methods) to screen job applicants, must stay within the confines of the law,” she said.
“Importantly, prospective employers must respect a job applicant’s privacy. It may be permissible for the employer to browse through open social media profiles; however, catfishing a potential employee by sending a fake friend request to do some snooping would be a poke too far.”
Where the information gleaned from an applicant’s social media profile, whether public or private, is entered into the employer’s record, the Protection of Personal Information (POPI), when fully enacted, will afford additional protection regarding the applicants’ privacy, said Robbins
Although only a limited number of provisions in POPI have been enacted to date, it is expected that the remaining provisions will be enacted this year, she said.
According to Robbins the POPI will provide the following additional protections:
- The applicant must be informed that his or her personal information is being collected;
- The applicant must consent to the processing of his or her personal information; and
- The record of personal information may not be kept for longer than necessary for achieving the purpose for which the information was collected (in this case, the screening of job applicants).
“Perhaps the most relevant risk for employers is an unfair discrimination claim lodged by a disgruntled and unsuccessful job applicant,” said Robbins.
“The Employment Equity Act 55 of 1998 (EEA) prohibits unfair discrimination against both employees and applicants for employment on the grounds of race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or any other arbitrary ground.”
In light of this, employers should exercise great caution when relying on information gleaned from social media profiles, she said.
“For example, declining to make an offer of employment because of a social media profile that depicts a particular religious belief, sexual preference, political affiliation or any other prohibited ground would amount to unfair discrimination.”
What employers are allowed to use
Whilst employers should tread lightly when screening job applicants, an employer is empowered to make hiring decisions, based on results from social media screening, that are linked to the inherent requirements of the job, said Robbins.
For example, where a job requires an employee to be politically neutral, and during a social media check of the applicant it becomes clear that the applicant has strong political affiliations, it would not necessarily constitute unfair discrimination not to offer the applicant the job, she said.
“In practice, it may be difficult for an unsuccessful applicant to prove that they did not get the job due to unfair discrimination.
“However, the risk for employers is tangible and the repercussions of an unfavourable award can extend past a monetary blow and end up in an unpleasant media storm.
“Provided that employers snoop responsibly, social media checks may provide some useful intel on prospective job applicants and so we understand why employers are clicking the like button.”