The main aim of the employer during the recruitment is to identify and hire the best applicant. In order to achieve this aim, (§1) the employer is entitled to choose with whom he/she wishes to contract and is interested in obtaining as much information as possible regarding applicants in order to make this decision. (§2) SNSs can serve this information hunger of the employer and can highly contribute to identifying the right applicant.
1085 Tricoit 2013. p. 10.
1086 In contrast, approaching the question from a “privacy point of view”, when the employee publicly shares some information, it goes beyond the protection offered by the right to respect for private life. Source: Tshilembe 2015. p. 700.
1087 In this context, not only the court’s jurisprudence is meant by case law, but also the practice of DPAs.
§1: The employer’s side: freedom of contract (A) The employer’s interests in obtaining information
The employer’s aim during the recruitment process is to identify and hire the most suitable candidate who would fit into the organisation. In order to achieve this aim, the employer is interested in knowing as much as possible about the candidate. The employer can either
“screen in” for desired characteristics, or “screen out” possible unsuitable applicants.1088 Having a profound knowledge on not only the candidate’s education and professional experience, but also on his/her personality and beliefs can contribute to assessing whether he/she could easily identify with the values of the specific employer.1089 Pre-employment background checks can contribute to higher productivity, increased quality and lower employee turnover, and can also help to detect whether the employee has a history of misconduct.1090 The reason for wanting to explore the applicant’s background is the employer’s belief according to which “past performance is the best predictor of future behaviour.”1091
Naturally, information on the education, previous work experience, language skills, computer literacy skills or leadership skills is undoubtedly connected to the professional life of the employee. Knowing whether the employee has the necessary qualification and experience, where he/she pursued his/her studies and worked prior to applying for the job is indispensable for deciding who is going to be employed. It goes without saying that the employer is interested in obtaining as much information as possible in these fields.
Besides information bearing professional character, employers are interested in having a widest possible pool of information on applicants, including their personal lives. Though this interest can be distinct from the employer’s rights in this field, as legal regulations aim to protect employees’ personal lives, it does not mean that the assessment of the personal traits is to be completely excluded during the decision-making. Besides the professional capacities of the applicant, employers are also interested in assessing whether the personal traits of the applicant make him/her suitable for the given post.1092 When concluding an employment contract, the personality of the prospective employee has a key, determining importance, as it can highly influence his/her successful integration into the undertaking. SNSs can largely contribute to gaining information regarding the personality of the applicant.
Usually, traditional background searches focused on matters like résumé accuracy, educational backgrounds, driving records, and reference verification, etc.1093 In addition to formally assessing submitted CVs or conducting interviews, through background checks employers are interested in assessing the personal traits of the applicant – such as whether he/she is lazy or antisocial, or has provided false information during the application – in order to know whether they are going to be a good choice for the workplace or for the job.1094
1088 Befort 1997. pp. 367–368.
1089 Sprague 2011. citing Alan Finder (https://www.nytimes.com/2006/06/11/us/11recruit.html)
1090 http://www.sweeneyinc.com/files/benefits_preemployment_screening.pdf (Accessed: 3 May 2018) p. 2., p. 3.
1091 Sprague 2008a. p. 399.
1092 Lehoczkyné Kollonay 1997. p. 91.
1093 Jones – Schuckman – Watson 2007. pp. 53–54.
1094 Peebles 2012. p. 1399.
With (SNS) background checks, employers can assess the applicant’s personality in order to assess whether they are going to integrate well into the company.1095 The employer is interested in knowing whether the employees would fit well into the existing work community and would be able to effectively cooperate with colleagues. Also, personal sympathy can play a role: the employer is interested in employing someone with whom he/she can imagine working with.
Employers might also be concerned about the lifestyle (e.g. drug or alcohol consumption, expressing extreme political or religious views, etc.) and the reputation of the applicant, as the applicant’s questionable conduct or poor reputation can have a negative impact on the employer.1096
(B) Freedom of contract
From a legal perspective, the employment relationship is considered to be a personal, long-term legal relationship,1097 where the identity of the parties plays an important role:
performing work in person is one of the primary qualifying attributes of the employment relationship,1098 having crucial importance. The HLC also defines among the employee’s main obligations the obligation to perform work personally.1099 The employee cannot use a replacement, as the education, work experience, professional aptitudes are all connected to the person of the employee.1100
The intuitu personae character, meaning that the identity of the contracting parties is the essential element of the contract,1101 plays an important role in concluding the employment contract.1102 It means that the employer can take into consideration the person of the applicant, in order to ensure the good functioning of the workplace.1103 Although legal regulations impose limits on the extent of the information that can be asked (such as rules relating to the prohibition of discrimination, or respecting personal life); considering certain subjective characteristics, such as the personality of the applicant, cannot be fully eliminated from the employment relationship.1104
The importance of the identity of the parties is manifested in the freedom to contract:
a general principle of civil law stipulated both by the French1105 and by the Hungarian1106 civil codes. It means that the parties can freely decide whether they wish to contract, with whom to contract and on which terms to contract.1107 With regard to our main subject, deciding the person of the contracting party has special importance.
1095 Baumhart 2015. p. 508.
1096 Del Riego – Sánchez Abril – Levin 2012. p. 18.
1097 Gyulavári 2012. p. 19.
1098 7001/2005. (MK 170.) FMM-PM együttes irányelv
1099 Item c of Subsection 1 of Section 52 of the HLC
1100 Hajdú – Kun 2014. p. 194.
1101 “[A] personal service contract where the particular individual cannot be replaced”. Source: Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 SCR 1021, 1992 CanLII 105 (SCC)
1102 Rivero – Savatier 1978. p. 62.
1103 Péano 1995. p. 3. (Page number referring to the online version of the article downloaded from: www.dalloz.fr)
1104 Péano 1995. p. 4. (Page number referring to the online version of the article downloaded from: www.dalloz.fr)
1105 Article 1102 of the French Civil Code
1106 Subsections (1) and (2) of Section 6:59 of Act V of 2013
1107 Vékás 2013. p. 545.
This freedom of contract covers the conclusion of the employment contract: the employer can decide with whom to conclude an employment contract and the future employee can choose where to apply.1108 Identified as a principle with constitutional value in French law, the employer has the freedom to choose his/her collaborators:1109 he/she has the possibility to have preferences when it comes to choosing between applicants.1110 The employee also has the freedom to choose whether he/she is going to apply for or accept a position, and can decide where to apply.1111
As a result, the interests of the employer demand to consider not only the candidate’s professional capacities,1112 but also his/her personal traits.1113 He/she is legally entitled to take into consideration certain extra-professional elements of the applicant’s life,1114 although legal regulations impose serious limitations regarding the intuitu personae character of the employment (e.g. discrimination, equality, individual freedoms).1115
§2: Methods of recruitment: Internet and social network sites
Different methods of selection help to provide the HR manager with a complete view of the candidate’s aptitudes or inaptitudes,1116 through which the employer can obtain an extensive range of information regarding the candidate’s professional aptitudes, his/her personality or even his/her private life. Besides the traditional methods of recruitment, such as conducting an interview, polygraph test, aptitude test, graphological tests, personality tests, medical tests, collecting references, etc., online background checks have gained considerable importance.
The advent of the Internet and SNSs has considerably changed what kind of information employers can discover regarding job candidates. They have become a popular recruitment method and gained ground in the phase of recruitment.1117 The rich amount of personal data and information present on SNSs can contribute to the identification of the most suitable candidate. However, in the recruitment process a difference should be made between professional SNSs and personal SNSs. Professional SNSs (e.g. LinkedIn, Viadeo) have the aim to maintain a professional identity, make useful contacts and search for opportunities.
In contrast, their personal counterparts (e.g. Facebook, Instagram) are primarily used for entertainment and to engage with the “friends” of the user.1118
1108 Kiss 2002. p. 268.; Radnay 2008. p. 88.
1109 Conseil constitutionnel: décision n° 88-244 DC du 20 juillet 1988
1110 Lyon-Caen 1992. p. 57.
1111 Lyon-Caen 1992. pp. 57–58. Article XII of the Fundamental Law of Hungary
1112 The employer can verify whether the applicant truly has the professional capacities necessary for the given job and whether information in the applicant’s CV is authentic. Source: Cantero – Coupez 2014. p. 39.
1113 Teyssié 1988. p. 375.; Arany-Tóth 2008a. p. 112.
1114 Jacquelet 2008. p. 64.
1115 Péano 1995. pp. 132–133.
1116 Bokor et al. 2007. p. 150.
1117 https://business.lesechos.fr/directions-ressources-humaines/ressources-humaines/recrutement/030656487193-85-des-recruteurs-font-des-recherches-en-ligne-sur-les-candidats-314060.php (20 June 2019).; Szűts 2015.
p. 29.
1118 https://econsultancy.com/personal-versus-professional-social-networks-infographic/ (Accessed: 13 August 2019)
Professional SNS profiles contain information primarily relating to the professional life of the individual: often information also present in the CV (education, work experience) completed with information typically not present in a CV but still having professional characteristics (work contacts, articles written by the individual, etc.). The professional or personal nature of the given SNS – together with the use(/lack) of the privacy settings – can have major importance when it comes to evoking the employee’s right to respect for private life.1119 Naturally, the candidate’s personal life is concerned to a lesser extent when it comes to the inspection of professional SNSs,1120 due to the fact they primarily contain information relating to the professional life of the individual, in contrast to personal SNSs, such as Facebook. For this reason, the following analysis will concentrate on personal SNSs, as their inspection might raise more severe privacy and data protection challenges or even infringements.
Conducting such background checks can be beneficial to the employer for two reasons.
First, as it was already demonstrated in Part I, SNSs provide an unprecedented access to a wide range of information on prospective employees – both regarding information relating to professional capacities and personal traits. Applicants are often inaccurate or even dishonest when writing a résumé and have rehearsed answers to interview questions that hide their true personality traits.1121 However, SNSs can reveal a multitude of information.
The information obtained in such a way can be of interest to the employer in several regards. A study from 2010 conducted by Cross-Tab on the attitudes relating to “online reputation”1122 searches reveals that the following – quite extensive – reasons were considered in the recruitment process and led to the rejection of a candidate: concerns about the candidate’s lifestyle; inappropriate comments and text written by the candidate; unsuitable photos, videos, and information; inappropriate comments or text written by friends and relatives; comments criticizing previous employers, co-workers, or clients; inappropriate comments or text written by colleagues or work acquaintances; membership in certain groups and networks; discovering that information the candidate shared was false;1123 poor communication skills displayed online and concerns about the candidate’s financial background.1124
Second, these searches are extremely easy to be conducted, entail minimal costs and allow the employer to obtain a rich pool of information beyond the candidate’s professional capacities, which in the pre SNS-era would have been more difficult and less cost-effective to obtain through the traditional methods.1125 They require only an electronic device capable of connecting to the Internet and an Internet connection. Then, the employer can easily inspect the candidate’s profiles through a simple Internet search.
1119 Tshilembe 2015. pp. 699–700.
1120 Instead of leading to issues, (especially) a professional account treated with due care can highly enhance the individual’s chances of getting employed. Byrnside 2008. pp. 457–458.
1121 Mooney 2010. p. 737.
1122 Meaning by online reputation the “[…] publicly held social evaluation of a person based on his or her behavior, what he or she posts, and what others (such as individuals, groups, and Web services) share about the person on the Internet.” https://www.job-hunt.org/guides/DPD_Online-Reputation-Research_overview.
pdf. (Accessed: 3 May 2018) p. 3.
1123 According to certain surveys, nearly half of the job applicants lie about their work history and education.
Source: Sprague 2008a. p. 398.
1124 https://www.job-hunt.org/guides/DPD_Online-Reputation-Research_overview.pdf (Accessed: 3 May 2018) p. 9.
1125 Brown – Vaughn 2011. p. 220.
Despite providing such a huge amount of information with minimal costs and efforts, SNS background checks present certain risks as well. In particular, several legal issues arise during their use, with special regard to the right to privacy and the right to data protection and relating to discrimination as well.1126 These legal issues will be dealt with in detail in Chapter 2. Also, beyond legal arguments, conducting SNS background checks can have a detrimental effect: the employer’s perception by job candidates might also be adversely affected: especially young job seekers would feel frustrated if the employer conducted a detailed online background check.1127