22 August 2011
A European perspective
We highlight the position in France and Germany as one that is illustrative of many other countries within the EU. As can be seen, it is a position similar to that in the UK.
Many employers in France and Germany use information on social media sites to vet job applicants. As in the UK, this is not prohibited but could result in employers facing risks under discrimination and data protection laws.
Discrimination against applicants on the basis of a protected characteristic such as their gender, sexual orientation, age and race is prohibited. It is common for such information to be found on an individual's social networking page. If employers use this information as the basis for rejecting an application, disgruntled applicants may bring claims for discrimination. In practice, the risk of claims is low as applicants would find it difficult to prove that they have been discriminated against.
The use of social media sites to vet applicants can also give rise to potential data protection implications. For example, if an employer in France wishes to refer to an applicant's social media profile as part of the recruitment process, they are required to notify the applicant before doing so. The restrictions are, however, less onerous in Germany. For example, employers are permitted to use information that is contained within professional networking sites such as LinkedIn without data protection restrictions.
Aside from vetting of applicants, another key risk (as in the UK) is the misuse of social media by employees. For example, disclosing confidential information about the employer's business or making disparaging comments about the employer or its employees.
Do employers in France and Germany take steps to minimise these risks? Some employers do take disciplinary action if the circumstances permit and this approach has been endorsed by the courts. However, this is less common than in the UK, and employers rarely take the sort of preventative steps that are more common here. For example, awareness training for employees and social media policies.
A US perspective
Many employers in the US also use social media sites to vet job applicants and, as in the EU, this practice is not prohibited. However, unlike in the EU, there are no specific data protection laws that place restrictions on the collection of data from social media sites. Therefore, the risks in the US tend to be limited to discrimination, breach of confidentiality and disclosure of other information that causes damage to the employer's reputation.
As in the EU, certain characteristics such as gender, race and disability are protected under US federal discrimination law. As such, US employers face similar risks of discrimination claims if information relating to protected characteristics is used from social media sites to vet applicants. Discrimination issues could also arise in the context of negative comments posted by employees about colleagues.
As in the EU, US employers will take disciplinary action if the circumstances permit (although there are some particular restrictions in cases where an employee uses social media to protest against working conditions on behalf of other employees, in which case the employer could face action from the National Labor Relations Board). In terms of preventative steps, employers in the US are closer to their UK counterparts in taking a proactive approach. Many employers have social media policies in place, provide training to their employees and have sophisticated HR operations that minimise the risks associated with using social media to vet applicants. For example, they might ensure that the person who scans social media sites is instructed to extract only relevant information for the application process and that this person is not the same person who determines the application process. This way, the irrelevant material (which might contain sensitive personal information) will not make its way through to the decision maker
Employers in the EU and US face similar challenges when dealing with social media and so the steps that can be taken to address these challenges are more or less the same. This will provide some comfort to global businesses striving to have common standards and a harmonised approach towards its employees. Many employers in the UK and US are ahead of the curve in comparison with employers in Continental Europe and these employers can lead the way in helping others to deal with the challenges brought by the use of social media in the workplace.
- Employers in the EU and US face similar challenges when dealing with the use of social media.
- Employers in the UK and US tend to take a more proactive approach toward preventative steps than on the Continent.
- Global businesses can adopt a common approach in dealing with the risks that arise within each country by implementing social media policies, providing training to employees on the use of social media and putting in place processes that minimise the discrimination and data protection risks that arise when using social media sites.
Christopher Fisher, Employment partner and Purvis Ghani, Employment senior associate at Mayer Brown International LLP