Legalities of Screening Candidates for Employment.

p0sitron_col1dr

I ran across an interesting post on my LinkedIn feed that posed a question for which I could not justify an answer. A representative of an organization listed the first/last name of a candidate that applied with their company as well as the city from which they appear to be a resident along with the type of position the candidate applied for. The representative of the company advised to avoid the user (by name) because the candidate allowed someone else to complete their screened phone interview and got busted by the interviewer.

Since completing a masters degree, I've thought about striving to earn a Juris Doctorate; therefore, I thought this was an interesting scenario. After searching for an answer to whether or not it is legal (not moral) to post such detailed information (that could potentially be in the category of "defamation") in a social media setting, I came up empty-handed. It is definitely a deceitful act on the part of the candidate and I don't support such activities whatsoever. Despite the fact that it wastes company time and resources, not to mention negatively affects those who are qualified and are in the applicant pool; Does anyone know if that type of post by the potential employer is legal in a public forum/social media site?

I'm going to continue to research to find the correct answer. Thank you for your insight.

Priston

Does the company that posted on social media have a privacy policy when you apply to their jobs?

p0sitron_col1dr

I'm sure that they do; however, I cannot find the article in the feed at this point to see what organization it was. Also, I simply cannot remember the organization's name. I suppose I should have followed the thread.

I sampled several publicly accessible candidate privacy policies by some organizations that basically outline the administrative and technical controls relating to the CIA triad of customer information including data retention, but from what I have seen many policies that are made public (prior to submitting candidate information for a position) do not disclose or define specific information regarding sharing candidate information or misconduct by a member of their staff to the public social media which could be used for risky screening purposes on part of the employer. An article that I read advised that 1/3 of 410 screeners disqualified employees based on content or discrepancies found on social media (Chicago Tribune, 2016). You would think that a thorough background check would discover the discrepancies. What employers see on a social media site cannot be unseen and the allegations made by the employer about the candidate must be factual as to not defame. Also, from a DLP standpoint, PII data does include unique information that can be used to identify or contact a single person (SANS.org).

Many of the defamation in "libel" cases that I read are related to terminated employees rather than perspective candidates. I couldn't find any details on the EEOC site either. Thanks, Priston!

OctalDump

Pretty sure that there is a risk of being sued for defamation, and possibly a risk to the organisation in question. Not that you need to necessarily win a case, just bringing a case can cost the respondent time/money/angst. So most companies would do the risk analysis, see that there is very little or no benefit in publicly outing someone, see that there is some legal risk and decide that it makes no sense.

Of course if you are on the other side, depending on what evidence they might have and exactly what they have said, it might not be worth pursuing. Amongst other things, there's the risk of the Streisand effect if someone decides that this story is 'quirky' enough to run in the media.

636-555-3226

man that's a bad idea right there. doubt the guy can afford a lawyer, but that's a pretty good case for libel or slander (if not other things, too) depending on whichever linkedin counts as.... much better idea to contact other HR orgs in the area on the down low and give them a warning heads up.

an aside - that's an interesting tactic i've never thought of before. wonder if the person just doesn't interview well and wanted a sub or what. of course, that doesn't make sense since the follow-up in-person interview will be 10x worse!

p0sitron_col1dr

Thank you all for your replies! 636-555-3326, I think you're definitely right that if information about a candidate should not be spread via a "bull-horn" method and should be more discrete. If I remember correctly, the part of the interview in which the fraudulent candidate was caught was when they were asked to verify a driver's license number or some other type of personal information and the interviewee became defensive or could not provide the info.

After reading multiple cases, I suppose it would be up to the candidate, who was impacted, to valuate significance of taking it to court (as you stated OctalDump), being prepared to prove any damages as a result (including poster feedback from members as well as anyone in a hiring position being able to see the post), and isolating the incident or providing an attempt to justify it. Then, the employer would have to make the decision whether or not to back their representative (interviewer) and prove the accusation as factual.

TechGromit

I highly doubt upper management is aware the HR rep posted this information. While the company may ultimately win any slander suit brought against the company by the person in question. Why take the risk? There's no upside for the business. If they are sued and lose, lots of lawyer fees, plus damages losing in court. If they are sued and win, still lots of lawyers fees. I wager if this post was brought to managements attention, it would be the HR rep that would be looking for another job.

yoba222

Agree with TechGromit. Company probably has no clue for the most part the recruiter posted that.

Also, from my armchair lawyer perspective, a threatening lawyer-like worded letter sent to the company demanding to cease and desist of the slanderous behavior on social media would likely get that post deleted quickly. The guy is definitely a jerk for cheating the phone interview though I don't know if it warrants a permanent digital face tattoo of condemnation that requires he leave the state or country to ever work again.

p0sitron_col1dr

I agree with you both, TechGromit and yoba222. Thank you both for your perspectives!

scaredoftests

Funny to have someone else do a phone screen. Still, that smells of defamation.