Are you exercising enough caution when Face-stalking?

by Stephanie Zillman29 Nov 2012

The proverbial Facebook-stalk. Don’t pretend you don’t do it; rather, check yourself before you wreck yourself – there is a minefield of legal hot water for accessing social media profiles.

Australian law can prohibit potential employers from using information gleaned from Facebook pages, exposing firms to liability under employment discrimination laws.

A survey report released this week by Nuage Software, found that the majority of employees and job seekers are happy for employers and recruiters to view their personal social media profiles – yet problems arise when employers and HR base the entire hiring decision on something viewed online.

By reviewing social networking profiles and information, employers may become aware of a job applicant’s age, political views, religious beliefs, marital status, race, union membership or activity, medical information, ethnicity, and other information that cannot be used to make an employment based decision.

“There is a danger in knowing information about matters which may be the basis for discrimination or adverse action,” Nicholas Linke, partner at Fisher Jeffries law firm said. “For the same reason that asking questions about such matters in an interview is dangerous (or downright stupid), employers should proceed with caution when gathering information in this way as it could be the basis for a claim,” he added.

Should a discrimination claim arise, the employer will have the burden of proof to demonstrate that the decision to reject a job applicant was based on a legitimate non-discriminatory reason, rather than the fact that the employer learned of the job applicant’s impending pregnancy, sexual orientation, or other discriminatory matters.


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