May 4, 2016
Apparently enough employers have taken that open-minded view that BC’s Office of the Privacy Commissioner considered it necessary to weigh in on the practice of harvesting information from social media sites.
According to the Privacy Commissioner, a social media background check can be as simple as checking out a person’s Facebook profile or as complex as hiring someone to conduct an exhaustive search of all online information sources. Regardless of the nature of the search, employers are mistaken in thinking that, because the information has been posted in an online forum, it’s not subject to BC’s personal information protection laws.
BC’s Personal Information Protection Act (and, in the public sector, Freedom of Information and Protection of Privacy Act) applies to the collection, use, storage, and disclosure of an individual’s personal information. No less than any other form of information gathering during the hiring process, social media checks are “a tool to screen and monitor current and prospective employees, volunteers, and candidates.”
The risks associated with gathering information online about candidates include the questionable accuracy of online material, the possibility of collecting irrelevant and out-of-date information, and the likelihood of uncovering material which the candidate would definitely not wish to divulge.
The Office of the Privacy Commissioner has published a series of guidelines to make employers’ task easier in sorting through the impenetrable Personal Information Protection Act. They start with the reminder that all information collected about an individual is subject to privacy laws.
The Privacy Commissioner recommends that employers determine which privacy law applies to its collection of information. They should also identify their purposes for collecting personal information on social media sites and confirm that the applicable legislation authorizes that collection and use of information.
Employers should determine whether there are less intrusive measures which would allow them to achieve the same purposes. Before proceeding, they should identify the types and amount of information likely to be collected, and consider whether they might inadvertently be collecting someone else’s information as well.
Employers should ensure the proper policies, procedures, and controls are in place in the organization to address and manage risks arising from the collection, storage, use, and disclosure of candidates’ personal information. It should notify a candidate of its intention to conduct an online background check and of what sites it will be checking, and it should be prepared to disclose to the candidate anything it ends up collecting.
The Privacy Commissioner considers employers’ reliance on a candidate’s consent for an online background check to be “problematic”. While acknowledging the employer may not need the candidate’s consent to use it for reasonable purposes relating to recruiting or to establishing an employment relationship, the Privacy Commissioner has identified some instances in which even having express consent wouldn’t be sufficient.
Ultimately, it is important for employers to know that if an individual suspects his or her personal information was collected or used improperly, a complaint to the Office of the Privacy Commissioner may be the result. That’s reason enough for employers to become conversant in the applicable statutory obligations before venturing online to harvest background information.
Employers wishing to review the Privacy Commissioner’s guidelines can download the document here: Guidelines for Social Media Background Checks for the Private Sector.
Reprinted with permission. Robert Smithson is a labour and employment lawyer, and operates Smithson Employment Law in Kelowna. For more information about his practice, or to subscribe to You Work Here, visit www.smithsonlaw.ca. This subject matter is provided for general informational purposes only and is not intended as legal advice.
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