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The internet, criminal records and recruitment decisions

Obtaining online information about prospective employees is easy pickings these days. But is it legal to base your recruitment decisions on these insights?

Prospective employees need to be mindful of personal information published online, and employers must be wary about how to use it.

A job applicant will usually supply details about themselves and their relevant work experience in their application. This information would usually be probed further in an interview of the applicant by the prospective employer and in the testimonials of referees.

But what about information about the applicant that’s accessible through other sources? A quick online search by the HR manager may provide more details about the applicant. Their profile may be on professional sites such as LinkedIn. It may also be on social media sites – Twitter, Instagram, Facebook – some or all of which may be visible to casual viewers, making it easy for potential employers to find out more about candidates.

Social profiles may, for example, include photos in casual settings taken by others that reflect a drinking culture, or the sharing of views on controversial topics. Information in the press, and newsletters of associations and organisations to which the applicant belongs may also come to light in an internet search.

This information may include allegiance to a church, a trade union, a think tank, a sporting body – the types of things a job applicant may choose not to reveal in a formal employment application. Can an employer take this information into account in forming a view about a potential job applicant?

Legal parameters

The law relating to criminal records is fairly clear. Under the Commonwealth Australian Human Rights Commission Act, the Australian Human Rights Commission (AHRC) can investigate complaints of discrimination on the basis of a criminal record that’s not relevant to the position being applied for, as an irrelevant criminal record cannot lawfully be taken into account to deny a prospective employee the position.

What’s relevant to the job may, of course, need some consideration. However, some circumstances leave little doubt. A traffic offence would be irrelevant to most positions, unless the job involved, say, driving as a chauffeur or a bus driver. And in most states, old convictions of a certain type (usually excluding sexual offences) are regarded as “spent”, so an applicant who’s asked whether they have a criminal record can lawfully answer “no” to the question.

In a recent example, an applicant was about to be offered a job. He’d received a conditional employment offer, and it was then discovered he had a criminal record (accessing child pornography), which the AHRC ruled was not relevant to his employment.

A weakness of the federal legislation, however, is that the AHRC’s ruling isn’t enforceable, and the employer can choose not to follow it. This doesn’t apply to other prohibited grounds of race, sex, political opinion, marital status and so on. More complicated is the information readily available online, some of which relates to that applicant’s personal life and has been placed there by him or her. Other information may have been posted by organisations to which they belong, or their networks or friends, and the applicant has no control over the publishing of that information or their image.

When it becomes discrimination

State and federal anti-discrimination laws are clear: it’s prohibited for an employer to take into account a person’s status as a spouse or parent with family responsibilities; any disability, mental or physical, that the job applicant might have; their age; their sexual orientation; their political opinions; their race and nationality; or their trade union activity.

Refusing someone a job on these grounds would also breach the general protections of the Fair Work Act. If any of the online searches reveal information included in these categories, it would be unlawful and in contravention of these legislative provisions to base recruitment decisions on those grounds.

The Victorian government introduced a pilot scheme for public sector job applicants to be anonymous to reduce the chance of irrelevant factors being used to determine applications. Another possible, but little-used, source of discrimination is “social origin”.

A researcher has identified areas where taking into account a person’s background, school attended, “class” or “fit” in the workplace might breach provisions of the anti-discrimination legislation or the adverse action provisions of the Fair Work Act 2009 (Cth).

The lessons are fairly clear for employers and job applicants alike. Anyone seeking employment (or indeed, to retain their job) should be vigilant about what’s posted about them on social media sites. Employers should be careful making use of online information in recruitment decisions, as to do so may breach anti-discrimination laws, while taking into account that old convictions may go against the spirit of spent conviction laws.

Professor Marilyn Pittard is Associate Dean Academic Resourcing in the Faculty of Law, Monash University.

Learn more about workplace and employment law with a master’s degree from Monash University’s Faculty of Law.

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