There is no law to guide employers at the moment. No case has come before Fair Work where an employee claims discrimination against an employer because they looked up information or comments on a social media profile.
However, there are already examples of cases where employees’ comments have been tied to the workplace.
In the case of O’Keefe v William Muir’s T/A Troy Williams The Good Guys, an employee was dismissed after being found to have made offensive comments on Facebook about some co-workers. Complaining about a pay dispute, O’Keefe used some derogatory language about co-workers and was punished.
“I don’t think there’s any doubt about this,” Douglas says. “If it’s in the public domain even on social media, then it’s not private.”
“Obviously if you hack into anyone’s social media, that’s quite clearly wrong. But people often think their Facebook is private, but if you haven’t taken steps to ensure that privacy, it can be relied upon in cases such as this.
At the very least, Vitale says this demonstrates that comments made by an employee on a Facebook wall can influence action taken by an employer. There is no reason to suggest this couldn’t happen during a hiring situation.
There isn’t an easy answer. Legal experts give differing advice and say there isn’t really any way to know until a case comes up.
But there are some protective measures you can take. As IR expert Joydeep Hor explains, you’d have to make a mistake of “gigantic proportions” for someone to realise you’ve looked at their profile, but there are precautions you should take anyway.
Hor, managing principal and founder of People & Culture Strategies, says one of these is the most obvious – plainly disclose your intention to browse social media profiles during the hiring process.
“If you’re going to do it, then I recommend that you actually disclose you’re going to do it. And, that way, you can invite them to share with you anything that may be a trigger for alarm bells.”
“It allows a conversation about why the employer is doing what they’re doing, and allows them to respond as well. You might say to them you’re considering a number of things that might appear and, if they want to respond, they can.”
Vitale goes a step further, saying businesses should think about establishing clear guidelines and policies about how they intend to address social media as part of any research.
“This is for companies and particularly recruitment agencies using social media. There are plenty of potential issues that require set policies.”
“Perhaps someone might misinterpret something on a Facebook page, or they may miscommunicate to someone else what they’ve seen.”
“Social media is such a great research tool, but many people don’t think about the consequences.”
Douglas says it’s important that you train people looking at social media profiles, so that you can try and separate what details are crucial to the job. However, he admits this “is not at all easy”.
“I don’t know how you divorce yourself from that knowledge. You can look at things that just pertain to the job description, but who’s the genius you’re going to hire to do that?”
But until a case comes before the court, employers will be flying blind. At the very least, these experts say you should be prepared.
“What will ultimately happen is that someone will in due course do something silly, and then end up in court, and then be used as the poster example of what someone should be doing. It’s only a matter of time.”
Patrick Stafford is a freelance journalist and a former deputy editor of SmartCompany.
