Employers using social media to check almost every single recruit

The lack of specific legislation and case law is making it difficult for employers and employees to determine their legal position when issues such as ownership of profiles, social media surveillance and social profiling arise, a conference on information technology law has revealed.

The complex legal minefield can be addressed by traditional laws that can be extended to apply to social media, the Malta IT Law Association heard in its second edition of its annual conference that discussed the legal implications of the use of social media at work and throughout HR processes.

“This seminar touched upon a wide range of legal issues ranging from Data Protection and Privacy, to Intellectual Property and Employment legislation in the light of social media use at work. With around 80 delegates attending this event, our seminar went down as another big success for MITLA and proved that there is a strong demand for such events that create the ideal forum of discussion of such topical subjects,” Dr Antonio Ghio and Dr Gege Gatt, respective president and vice-president of MITLA, said.

In a very detailed presentation supported by ample case studies, Dr Paul Gonzi and Dr Thomas Bugeja from Fenech & Fenech Advocates discussed the evolving legal issues dealing with social media in the workplace, showing how 96% of recruiters used social media to assist in recruitment initiatives.

“This only accentuates the possibility that employers could fall for the discrimination trap whilst failing to operate within the right balance between privacy and the need to ascertain candidate abilities. A number of recent legal cases of discrimination at recruitment stage citing social media show a growing trend. Yet, in the absence of specific social media laws, general employment law applies,” Bugeja said.

“when it comes to social media, self-regulation is the way forward both for companies and individual employees,” Gonzi added. “It is only when grey areas are clarified and employees provided with the appropriate guidance to know what is acceptable and what is not that we can start mitigating risks of misuse and misconduct.

“Companies could start by ensuring that their policies contain guidance on acceptable and unacceptable use on work PC and tools, set clear rules on excessive use and use during working hours, clearly notify employees of any Data Processing and Social Media Monitoring in terms of applicable data protection laws, require employees working on social media on behalf of the company to sign specific agreements transferring IP rights and ownership to the company, provide employees with guidance and tools to maximize beneficial social media use and deal with disciplinary matters reasonably and proportionately whilst seeking legal advice to ensure compliance with the law.”

Gonzi and Bugeja said that in such cases, it would be highly unadvisable for companies to impose blanket bans or draconian measures on its employees. “Whilst ensuring that no company accepts any behaviour which may be deemed rude, crass, insulting or offensive, employers should ideally not hamper employee use of Social Media but guide them in better use for their own self-development and for their companies’ benefit. Over-regulation should also be avoided as this could carry human rights implications.”