Social Media and Background Checks

Information Privacy and Data ProtectionLexpert Seminar

Lyndsay A. Wasser December 9, 2013

Social Media – Recruitment

Social Media can be a great tool for recruitment:

o LinkedIn

o Facebook

Referrals

Application Tools

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Social Media – Recruitment (cont’d)

Develop clear guidelines/policies

Retain control to avoid potential misrepresentations:

o Only allow authorized personnel to make postings

o Control the message

o Provide training

o Monitor activities

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Social Media – Background Checks

Benefits of social media background checks:

o Discover whether candidate presents him/herself professionally

o Assess written communication skills

o Determine whether person is a “good fit”

o Check qualifications

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Social Media – Background Checks (cont’d)

Information posted online is still “personal information”

Personal information is broadly defined, with few exceptions

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Social Media – Background Checks (cont’d)

Publically Available Information – Defined narrowly under PIPEDA, Alberta PIPA and B.C. PIPA:o Telephone directories

o Certain registries

o Publications available to the public

Quebec – Information that is “by law public”

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Social Media – Background Checks (cont’d)

Most PI posted in social media is not “publically available” or “by law public”

Alberta PIPA has been declared unconstitutional

o Alberta (Information and Privacy Commissioner) v. UFCW, Local 401

o How will it be amended?

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Social Media – Background Checks (cont’d)

Consider requirements of applicable privacy legislation:

o Notice/Consent

o Reasonableness & Collection Limitations

o Ensure information is accurate and up-to-date

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Social Media – Background Checks (cont’d)

PIPEDA and Quebec Act require consent

Alberta PIPA and BC PIPA each require notice

Reasonableness & Collection Limitations

o Irrelevant information

Outdated/inaccurate information

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Social Media – Background Checks (cont’d)

Privacy Commissioner Guidelines – Do’s:

o Review applicable laws

o Consider purposes of checks

o Consider alternatives

o Identify types of PI likely to be collected

o Identify risks

o Have appropriate policies, procedures and controls

o Obtain consent/provide notice

o Provide access

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Social Media – Background Checks (cont’d)

Privacy Commissioner Guidelines – Don’ts:o Wait to evaluate compliance

o Assume check will only reveal relevant PI

o Assume individual will not find out

o Try to avoid privacy obligations

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Social Media – Background Checks (cont’d)

Other jurisdictions:

o Jones v. Tsige – New common law tort of intrusion upon seclusion

o NDP case – Employment application requiring social media passwords

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Social Media – Background Checks (cont’d)

Consider other applicable laws:

o Human rights laws prohibit discrimination on the basis of factors 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

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Social Media – Background Checks (cont’d)

Best Practices:

o Obtain consent/provide notice

o Conduct check after a conditional offer of employment has been made

o Limit check to available information

o Provide training to hiring managers/human resources staff

o Document reasons for hiring decisions

o Retain records

o Implement appropriate security measures

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Social Media – Disciplining Employees

Must balance:

o Employer’s ability to manage the workplace

o Employee privacy rights

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Social Media – Disciplining Employees (cont’d)

Discharge may be appropriate where postings:

o Harm the employer’s reputation

o Render the employee unable to perform his/her duties

o Breach the law or employer’s policies

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Social Media – Disciplining Employees(cont’d)

Relevant factors:

o Employee’s conduct in the investigation

o Content of postings

o Personal factors

o Conduct of employer

o Social media policies

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Social Media – Disciplining Employees(cont’d)

Lougheed Imports Ltd. (c.o.b. West Coast Mazda)

o Postings - offensive, insultingand disrespectful

o Urged people not to spend their moneyat West Coast Mazda

o Dishonest during investigation

o Termination upheld

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Social Media – Disciplining Employees (cont’d)

Dishonesty cases – Employees claiming to be disabled:

o Riding speedboats

o Painting their house

o Participating in triathlons

o Modeling in Cuba

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Social Media – Disciplining Employees(cont’d)

Discipline cases rarely consider privacy legislation

Bottom line – There is some risk

Consider best practices outlined earlier to reduce risk

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Questions?