Privacy issues related to social media have been all over the news in the last few months. As public debate continues, employers should carefully consider how they use the personal information about employees or job applicants that they find on social media or on the internet.
Employers often engage in social media background searches when considering applicants for employment.
Many employers believe that if an applicant makes information about themselves publicly available online, employers are entitled to view and consider it as part of the vetting process. However, employers are advised to act with caution.
B.C.’s privacy commissioner has highlighted two areas of risk when undertaking social media background checks:
•the information might be inaccurate or outdated; and
•employers might be over- collecting information contrary to privacy law.
In particular, employers might be unnecessarily collecting information about unrelated third parties or collecting information about an irrelevant period of time.
In addition to privacy concerns, employers must be mindful of human rights legislation. Employers are prohibited from making employment decisions on discriminatory grounds.
Gathering information via social media can, in some cases, lead to an inference that a hiring or promotion decision was made for discriminatory reasons.
For example, if an employer learns through the social media background check that an applicant is pregnant and the employer decides not to hire or promote the applicant, depending on the circumstances, an inference could be made that the decision was made in whole or in part because of the pregnancy, contrary to human rights law. Allegations of this type would be subject to proof; however, information technology tracking tools and litigation disclosure requirements can be used to obtain the necessary proof.
On the other hand, the privacy limitations on employers do not insulate employees from suffering employment consequences for inappropriate online behaviour.
For example, where an employee’s online activity has a significant negative impact on the workplace or causes harm to the employer’s reputation, an employer might be entitled to terminate the employment relationship for cause.
In a recent labour arbitration case, the termination of a firefighter for using derogatory language during a Twitter exchange was upheld because the individual “failed to conduct himself in a way that brought honour to his uniform.”
Even though the Twitter exchange did not directly relate to the workplace, it was clear that the individual was a firefighter and the reputational damage to the employer was sufficient to warrant termination for cause.
However, employers should always carefully and critically analyze any evidence of employee misconduct that is found online before relying on it for disciplinary purposes. Given the ease of posting information online, that information might be inaccurate or unreliable or have been posted contrary to law.
For example, in Order P17-03, the B.C. privacy commissioner found that Surrey Creep Catchers acted contrary to B.C. privacy legislation by collecting personal information about individuals without legal authority and posting it online without consent.
The commissioner found that the Surrey Creep Catchers’ activities are not journalistic because they “do not involve any effort to provide an accurate and fair description of the facts, opinion and debate.”
Rather, the commissioner found that the Surrey Creep Catchers engaged in deceptive and misleading practices and ordered the organization to take the relevant personal information off the internet. This order was upheld by the BC Supreme Court.
The Creep Catchers case is a good reminder to treat online information with caution in the employment context.
Employers are advised to undertake their own investigation into online information about employees, rather than relying on the statements of third parties that have not been tested by any independent adjudicative process. •
Keri Bennett is a partner at Roper Greyell LLP.
