Daniel Hope

It is estimated that 70% of employers now screen the social media profiles of job candidates as part of their recruitment process. In light of these practices, last month the Article 29 Working Party issued a series of guidelines in an attempt to safeguard the privacy of job applicants.

The Working Party has warned employers that they should not assume they can process data gathered from an individual’s social media profile just because it is publicly available. The guidelines recommend that there should be legal grounds to justify this type of processing, such as legitimate interests. Employers are also advised to consider whether the social media profiles of job applicants are ‘related to business or private purposes’ as this can be an important indication of the legal admissibility of the data inspection.

In addition, the Working Party has indicated that applicants should be informed if social media screening will take place, for example, in the text of a job advert, and that any background checks should be limited to what is necessary and relevant to the performance of the job being applied for. Employers should also take care to delete applicant data once it becomes clear that a job offer won’t be made or accepted.

Whilst Article 29 Working Party Opinions are not strictly legally binding, employers should be conscious that the Working Party comprises representatives of each of the EU’s national data regulators, including the ICO, and that non-compliance with its Opinions is generally seen as highly indicative of a violation of European data protection regulations.

Further, this Opinion analyses the additional obligations placed on employers by the looming General Data Protection Regulation and sheds much needed light on the approach European regulators are likely to take in this area from May 2018.

Going forward, employers should look to develop measures and processes that show they are listening, particularly in light of the new enforcement and sanctions regime that will kick in under the GDPR.

For more information on the Article 29 Working Party Opinion on data processing at work, click here.

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