A LinkedIn post about unofficial reference conversations kicked off a debate about the practice
When US CEO and tech founder Mariah Hay took to LinkedIn to call out the use of “backchannels” to get the lowdown on job candidates, she kicked off an intense debate about how information is gathered on prospective hires.
Hay, the CEO and co-founder of tech platform Allboarder, shared the post after being contacted by a vice president of product from another company to have a “quick backchannel conversation” about a candidate he was considering hiring.
Hay, who defined backchanneling as contacting former managers or colleagues of a candidate for an unofficial reference without the candidate’s knowledge or consent, wrote the request “stopped me cold”.
“Let me be clear: Backchanneling is unprofessional,” she wrote in her post. “No one should ever speak off-the-record in a way that could jeopardize someone else’s opportunity for employment."
“If a candidate wants you to serve as a reference, they'll ask you directly. And if you're hiring, respect the process: interview thoroughly, ask for thoughtful references, and make an informed decision based on facts — not whispers.
“Backchannelling is lazy hiring dressed up as due diligence. It violates trust. It fuels bias. And it has no place in a professional, equitable hiring process.”
The post attracted 240 comments, many of them supportive of Hay’s position, and some raising questions about the legal, and ethical issues of the practice.
HRD asked employment lawyer Paul O’Halloran, partner and head of office for Dentons in Melbourne, about the potential legal issues in Australia of seeking information outside of a candidates’ approved reference list.
O’Halloran told HRD from a legal perspective, this issue was covered by the Privacy Act.
“It's not illegal as such, but the practise of backchannelling is a form of data collection of personal information and if it is conducted without the candidates consent it could technically be a breach of the Privacy Act,” he said.
O’Halloran (pictured above) said if employers were using backchannels to gain information for recruiting, technically they should get the consent of the individual or notify them in advance.
“The easiest way of doing that is some sort of a privacy notice that is made available to job candidates when they apply for a job or a consent form that candidate sign that indicates that the employer might be doing background checks or collecting additional information,” he said.
“There is no reason to be secretive about it. All the Privacy Act is saying, if you're going to do this, it doesn't say it's prohibited, if you're going to do it, you need to inform the candidate in advance or as soon as practical afterwards.
“I would just include a notice in your recruitment package of information the candidates get, or even in job advertisements, that complies with Australian Privacy Principle 5.1 which basically says we may do social media checks of information in the public domain and, with your consent, we may contact previous employers that you've not listed on your CV.
“If people choose to withdraw from the recruitment process because of that, they can do that. Or if they don't give their consent, the employer can choose not to progress their application.”
O’Halloran said he was not aware of any prosecution of an employer for doing social media background checks or talking to people not listed on a CV but in theory that could happen.
O'Halloran said as an employment lawyer he had seen “incredibly inappropriate people" hired with fake or exaggerated references.
“I definitely know for those industries where there are vulnerable stakeholders, children, elderly, for example, undesirable candidates that get jobs due to fake or not credible references can cause an enormous amount of harm,” he said.
“Bad employees and toxic managers bounce around from employer to employer to employer and unless you do a little bit more due diligence, you actually never really find out how toxic some of these people are.
"The Royal Commission into Child Sexual Abuse, they endorsed very careful background checking with people who are not listed as main referees to verify the professional background of people."
