Caution needed when checking out candidates on the Internet
Question: Our company conducts Internet searches on job applicants, including checking out social media pages such as Facebook. Are there any problems that could come up if our hiring decisions are based in part on information we get from these searches?
Answer: While it has become common for employers to check out candidates on social networking sites such as Facebook, Twitter, YouTube, MySpace and LinkedIn, or to “Google” their names, many are unaware of the potential privacy and human rights complications that may arise.
Employers should exercise caution when relying upon information from these sites. Given the volume of individuals using these sites, employers could easily mistake someone on a social networking site for an applicant with the same or similar name.
From a legal perspective, searching for information on the Internet may raise privacy concerns. Employers must consider the privacy legislation that applies to their operations: The Personal Information Protection and Electronic Documents Act for private sector organizations handle in every jurisdiction except British Columbia, Alberta and Quebec. and provincial Personal Information Protection Acts in B.C. and Alberta.
In all jurisdictions, privacy statutes govern the collection, use and disclosure of personal information. Given the broad definitions of “personal information” in the legislation, the information employers typically obtain from social networking sites will often fit within this definition, which means accessing the information may constitute “collection” of personal information. In such circumstances, employers may be required to obtain a candidate’s consent before collecting and using the personal information in question.
Having said that, privacy statutes permit the collection of personal information without consent if it is publicly available. In B.C., publicly available information includes personal information that appears in a printed or electronic publication available to the public, including a magazine, book or newspaper in printed or electronic form. In Alberta, publicly available also includes information that appears in a printed or electronic publication and employers may collect such information if it is reasonable to conclude it was supplied by the candidate. Since individuals control their own social network sites, it is reasonable to conclude they have provided the information on such sites.
Social networking sites that are accessible to the public likely fall into the definition of publicly available information. Therefore, employers have a reasonable argument that they are entitled to collect information from these sites without consent. However, accessing information on pages available only to a candidate’s “friends” may require consent.
In addition to privacy concerns, employers should also consider the human rights implications of gathering information this way. Human rights legislation prohibits discrimination in employment on a number of listed grounds. Social networking sites may reveal personal information such as membership in a group whose characteristics are protected by human rights legislation, such as sexual orientation, religion, race, place of origin, political beliefs, family status or disability. If the candidate is not hired, the employer’s collection of this type of personal information may lead to a human rights complaint.
