Ever made an “inappropriate” remark in note form when going through the hiring process to help you remember which candidate was which? For example:
Bloke with red hair, dumb as a stick, irritating voice.
Blonde receptionist candidate just got married and appears ready to start a family.
Last candidate had a work injury claim two years ago – still limps.
Well, those notes could come to haunt you if a candidate ever requested to see them. In case you didn’t know, candidates are allowed to ask to read them.
According to Harmers Workplace Lawyers senior associate, Bronwyn Maynard, under the Privacy Act candidates can apply directly to you as the employer to see the notes made about them during the recruitment process.
She said that there were some exemptions, namely where the records are commercially sensitive; or where they include details about other people as it would be breaching the privacy of those people to show the notes to the candidate.
If a candidate asks to see notes made about them, then there is a set response time specified by law, although Maynard believes 30 days is reasonable.
Once a candidate views the notes he or she can ask you to correct anything you have written about them that they believe is incorrect. If the candidate decides that the information you had noted down was irrelevant to the recruitment process, he or she could make a complaint to the Privacy Commissioner.
So what might be deemed irrelevant? From my exaggerated examples above – someone’s hair colour or the fact they were recently wed.
Another problem could arise from a scribble like my last fictional note: Last candidate had a work injury claim two years ago – still limps.
Under the “General Protections” section of the Fair Work Act employers cannot treat someone adversely for exercising a workplace right.
Making a Worker’s Compensation claim is exercising a workplace right.
Also, beware of the notes you make during reference checks. A past employer might not be well versed in legislation covering privacy or even discrimination and can make any number of inappropriate remarks that you then dutifully take down.
The Privacy Act also requires employers to:
- Tell a candidate if they have collected personal information about them.
- Explain the purpose of gathering that particular information.
- Advise the candidate who else will see that information.
Things can get even trickier if you have gathered information from a social networking site so beware of “Googling” people and making notes about it.
As previously reported on backend.dynamicbusiness.com, using social networking sites to gather information about candidates is fraught with risk.
“Importantly, employers must remember that these privacy obligations apply even if the information gathered was obtained from a public source as would be the case for many personal details included on an individual’s blog, Twitter, Facebook or MySpace page,” Maynard warned.
An employer once told me about screening out a candidate when trying to fill a receptionist role because she had too many “friends” on her Facebook. He feared her time would be spent updating her profile instead of answering phones.
Had this employer made a note of his observation that was later viewed by the candidate, he or she could have made a case that her Facebook profile was irrelevant to her ability to do the job.
Maynard advised that to play it safe some companies had banned employees using social networking websites at all when collecting candidate information.
So next time you go to make a note to yourself about a potential candidate, think again.