Click With Caution: What Employers Should Know Before Conducting Social Media Background Checks On Prospective Employees

Author:Ms Terri Zurbrigg and Anne Côté
Profession:Field LLP
 
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With the proliferation of social media sites such as blogs, Facebook, and LinkedIn, and their increasing prominence in the business realm, it is not surprising that employers have begun to access the information posted on these sites in the course of conducting background checks on prospective employees.

As discussed in previous issues of Workwise ( Another Brick in the Wall: Arbitrator Upholds Discharge for Offensive Facebook Postings), ( Facebook: What Employers Need to Know about Workplace Privacy, Discipline & Dismissal), employers may discipline or terminate employees based on inappropriate material they post on the internet.

However, legal risks may arise for employers even before the employment relationship has begun as a result of using social media websites to collect information about job candidates.

Although employers may consider reviewing the contents of a prospective employee's Facebook page part of their due diligence, this practice would likely be considered a collection, use or disclosure of personal information under Alberta's Personal Information Protection Act, which governs how private organizations collect, use and disclose personal information. To that end, the Office of the Information and Privacy Commissioner of Alberta has recently released "Social Media Guidelines1" which identify the legal risks that arise in this context. In order to "click with caution," employers should keep the following eight pointers in mind.

  1. "Publicly Available" Doesn't Mean What You Think It Does: It's a Defined Term in PIPA

    Employers may be of the view that information prospective employees post about themselves on the internet is "fair game" because it is publicly available. However, the provisions in PIPA that allow for collection, use and disclosure of personal information without consent if the information is "publicly available" are heavily circumscribed by the PIPA Regulation, which defines "publicly available" as personal information contained in public, business or governmental directories; judicial or quasi-judicial decisions, and magazines, books and newspapers when the information was provided by the individual. As it is unlikely that information posted on social media sites is captured by this definition, this information would not be considered "publicly available" for the purposes of PIPA.

  2. Take Only What You Need: The Privacy Risks Going Beyond the Traditional Reference Check

    In order to justify a social media background check, an organization must be able to demonstrate that the collection is reasonable in terms of purpose and scope. In other words, employers must be able to demonstrate that there is a reasonable...

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