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Given the rise of social networking in the past decade, it is no
huge surprise that employers have become interested in mining this
newfound technology for information about prospective
employees.
There is a recent alarming trend in the United States however,
where employers have been asking employees to provide their
facebook passwords during the interview process so as to grant the
employer access to a wealth of additional personal information
about the prospective employee.
Though this type of background check may be arguably legal where
carried out with the employee's consent; one has to wonder what
the implications are for the employer in making such a request.
First of all, notwithstanding the fact that access to a social
media website such as Facebook may be only obtained by virtue of an
employee's consent; the validity of this consent is
questionable when the employee is asked to provide this in the
course of his or her application for a job. A prospective employee
does not have much of a choice on the issue if they would like to
be considered for the position in question, particularly given the
limited job opportunities in certain industries.
Second of all, putting aside the issue of consent, an employer
should ask themselves what information do we hope to obtain through
this check. Employers should be wary of relying on the accuracy or
truthfulness of any information found on such social media
websites, as they are used primarily for recreational purposes.
Furthermore, some of the information that may be garnered on such
sites with respect to a prospective employee (whether inadvertently
or not), such as one's marital status, sexual orientation or
religion, could lead to a potential human rights complaint under
the Human Rights Code (Ontario). For example, where an
employer requests a candidate's consent to use their Facebook
password to access their Facebook account as a pre-condition to
hiring, and where such a candidate is subsequently not hired, the
employer may open itself up to a human rights complaint on the
basis of employment discrimination on one of the above-referenced
prohibited grounds.
Finally, employers should consider how access to a prospective
employee's social media website may render them inadvertently
privy to another person's confidential information,
particularly where such person has imposed a privacy setting that
the public normally would not have access to, or where the employer
gains access to private personal messages sent between the
prospective employee and other social media users.
In response to growing public concern and protests by such
groups as the American Civil Liberties Union, US Congress has made
several recent attempts to pass legislation whereby employers would
be fined, in one proposed bill, up to $10,000 for attempting to
force workers into giving up their social media passwords.
Notwithstanding the implementation of such legislation in the U.S.,
employers in Canada should be very cautious in utilizing such
social media background checks in the application process with
prospective employees, unless it is absolutely necessary or
particularly relevant with respect to the position in question.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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