Background checks are an important tool for employers to assess the suitability of candidates for employment opportunities within the organization. Social media checks, in particular, can provide a lot of useful information respecting whether a candidate: (1) presents him/herself professionally; (2) is a good fit for the company's culture; (3) has the right qualifications for the position; and (4) is generally a well-rounded person.
If social media checks provide such useful information, why are the number of employers performing such checks decreasing instead of increasing?1
The decline in social media checks on prospective employees may reflect an increased awareness of privacy laws and other legal risks associated with such activities. In Canada, there are four (4) jurisdictions that have specific privacy legislation that restricts the ability of employers to perform background checks on employees or prospective employees, as follows (collectively the "Privacy Statutes"):
- Federally regulated employers – The Personal
Information Protection and Electronic Documents Act, S.C.
2000, c. 5.
- Employers in Alberta – The Personal Information
Protection Act, SA 2003, c P-6.5.
- Employers in British Columbia (B.C.) – The Personal
Information Protection Act, SBC 2003, c 63.
- Employers in Quebec - An Act respecting the Protection of Personal Information in the Private Sector, RSQ, c P-39.1. See also the Civil Code of Québec, LRQ, c C-1991, and the Charter of Human Rights and Freedoms, RSQ, c C-12.
There are differences between the Privacy Statutes, however, they contain some common features that have the effect of restricting or prohibiting social media checks. For example, the Privacy Statutes require: (1) notice and/or consent prior to collecting an individual's personal information; (2) that organizations limit their collection of personal information to that which is necessary for reasonable purposes; and (3) that organizations take reasonable steps to ensure that information collected is accurate, complete and up-to-date. Although some exemptions exist in the Privacy Statutes for "publicly available" information, this term is specifically, narrowly defined2 and would not cover much of the information that would be collected via a social media search.
An employer may be able to satisfy the first requirement listed above (notice/consent), however, the other two requirements are likely to be problematic in most cases. Firstly, social media checks reveal a wide variety of information about the job candidate and third parties (such as Facebook "friends", Twitter "followers", or persons who have a name similar to the candidate). Unlike with traditional background checks, it is difficult, if not impossible, to control the amount of information collected to only that which is reasonable and necessary in the circumstances. In addition, information available on the Internet may be incorrect, falsified or out-dated, which impacts the organization's ability to ensure that all information collected is accurate, complete and up-to-date.
In jurisdictions other than those listed above, there are fewer restrictions upon an organization's ability to conduct social media background checks on employees or prospective employees. However, all individuals have some privacy rights in every Canadian jurisdiction. In the recent case of Jones v Tsige, 2012 ONCA 32 (CanLII), the Ontario Court of Appeal created the tort of "intrusion upon seclusion", as follows:
Although there is no case law on this issue to-date, a simple Google or Facebook search on a job candidate that reveals information which is not restricted or password protected likely would not satisfy this test. However, employers that take more invasive or deceptive actions (e.g., by demanding candidates' social media passwords, attempting to circumvent password protections to hack into candidates' accounts, or misrepresenting themselves in order to be accepted as a "friend") could face claims of "intrusion upon seclusion".
Furthermore, in all Canadian jurisdictions, social media searches increase the risk of human rights complaints. Human rights legislation across the country prohibits discrimination on the basis of characteristics such as: social condition, source of income, political beliefs, criminal conviction, mental or physical disability (including drug/alcohol addiction), family status, marital status, gender identity/expression, sexual orientation, pregnancy/childbirth, sex/gender, age, religion/creed, nationality/citizenship, national/ethnic/place of origin, ancestry, and race/colour.
A social media search has a high probability of revealing information about one or more of these protected characteristics. If a candidate is not hired after this type of information has been collected, the candidate could allege that the organization's decision to refuse employment was based, at least in part, on the protected characteristic. Even if the allegation is false, the organization will be put into the position of having to defend its decision, as well as incurring the costs and inconveniences of defending against a human rights complaint.
Given the risks associated with social media background checks, employers would be well advised to carefully consider whether such searches are necessary to achieve their goals. In many cases, the information needed to assess a candidate's suitability for employment can be obtained through more traditional means, such as interviews, reference checks and criminal background checks. Although there are also laws applicable to traditional types of background checks (which should be taken into consideration before the checks are undertaken), these checks generally give employers more control over the amount and type of information they collect.
For federally regulated employers and employers in Alberta, B.C., and Quebec, it would be prudent to avoid social media checks altogether, due to the difficulty of ensuring compliance with the Privacy Statutes.
In other jurisdictions, employers that feel the need to conduct social media checks should take steps to minimize the risks, such as:
- Obtain candidates' prior consent to the check, or at least
provide advance notice;
- Conduct the check only after a conditional offer of employment
has been made;
- Limit the check to information that is available to the public,
and do not demand or attempt to circumvent passwords;
- Ensure that hiring managers/human resources persons are
properly trained on human rights laws, as well as how they should
conduct the checks and use the information obtained, so that they
will limit the checks as much as possible to what is reasonable in
the circumstances and consider only the information relevant to
assessing a candidate's suitability for the position (without
consideration of any characteristic protected by applicable human
- Document the reasons for not hiring a candidate; and
- Retain the information (securely) for the time period necessary to respond to access requests, intrusion upon seclusion claims or human rights complaints.
These steps may not eliminate the risk of a human rights or privacy complaint, however, they can put the employer in a better position to defend against such claims.
At the end of the day, employers must weigh the risks of social media checks against the potential rewards, to determine if it is worthwhile for such checks to form a part of their hiring processes.
* This bulletin was prepared for a presentation at the Canadian Corporate Counsel Association (CCCA) Spring Conference (April 2013).
1 "Survey: 37% of your prospective employers are looking you up on Facebook", Nancy Messier, The Next Web, April 18, 2012.
2 An Act respecting the Protection of Personal Information in the Private Sector exempts personal information which "by law is public", as opposed to "publicly available" information. There is no definition of information that "by law is public" in the statute itself, but the meaning of this term under Quebec law is also narrow.
The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.
© Copyright 2013 McMillan LLP