Can employers require prospective employees to provide access to their Facebook profiles and accounts? A recent article in the Globe and Mail highlighted a growing trend among U.S. employers to require job applicants to provide their Facebook login and password as part of the application process. Facebook has warned U.S. employers that requiring applicants to provide their Facebook passwords is a violation of the terms of service and illegal under federal law. In light of the recent focus on this issue it is worthwhile to review the privacy obligations on B.C. employers in the hiring process and in particular in the collection of personal information from social media sites.
In British Columbia, the Personal Information Protection Act (“PIPA“) limits the ability of private sector organizations to collect, use and disclose an individual’s personal information even with the consent of the individual. Under PIPA an organization may only collect, use and disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances. PIPA allows organizations to collect “employee personal information” without consent if the collection is reasonable for the purposes of establishing, maintaining or terminating an employment relationship with the individual. “Employee personal information” is defined in PIPA to include personal information that is reasonably required for an employment relationship and to specifically exclude personal information that is not about an individual’s employment.There is a strong presumption in PIPA that the collection of personal information that does not fall within the definition of “employee personal information” is not appropriate for the purposes of establishing, maintaining or terminating an employment relationship and therefore the collection of such personal information from Facebook, with or without the consent of the individual, is a breach of PIPA.
The B.C. Commissioner has published guidelines on PIPA and the Hiring Process and on Social Media Background Checks that address the privacy concerns around the use of social media in the hiring process. For most individuals their Facebook page contains predominatly non-employment personal information that a prospective employer is not permitted to collect under PIPA. Information about personal relationships, social activities and interests and an individual’s personal opinions are not generally considered to be ”employee personal information”. Employers must not discriminate in the hiring process on grounds including sexual orientation, marital status, family status, religion, and political belief. The use of Facebook to collect personal information on a prohibited ground of discrimination for use in hiring decisions raises both privacy and human rights issues. Further, an individual’s Facebook page will normally contain their friends’ and family members’ personal information, none of which the employer is authorized to collect under PIPA.
Employers should carefully consider whether the use of Facebook to collect personal information about prospective employees is appropriate in the particular circumstances of the position and the applicant to determine if it is permitted under PIPA to collect the personal information. Employers need to be aware of the risks of collecting personal information in breach of PIPA and potentially in breach of human rights legislation.
