In the digital age, an individual’s personal information is often only a few keystrokes away. The prolific use of social media platforms, including Facebook, Twitter, Instagram, YouTube, LinkedIn, and Reddit, offer an abundance of personal details. While employers might value the ability to learn more about prospective candidates from their social media presences, there are distinct risks associated with employers conducting social media background checks.
Privacy legislation in Canada prohibits employers from collecting personal information from employees without their informed consent. Although there are slight differences between federal and provincial laws, all jurisdictions place some restrictions on the ability of employers to collect and use information of prospective candidates, including that:
- an employer must notify and obtain consent from an individual prior to collecting that individual’s personal information;
- information collected must be limited to what is reasonably necessary; and
- an employer must take reasonable care to ensure the information is accurate, complete, and up-to-date.
In light of the ubiquity of social media background checks, the Privacy Commissioners in Alberta, British Columbia, and Newfoundland have respectively issued guidance documents regarding the use of social media by employers to conduct background checks. These three policy documents collectively suggest that employers turn their mind to the following considerations.
1. Accuracy of Information
As noted, an employer has an obligation to take reasonable care to ensure the accuracy of the information collected. Social media can present a number of pitfalls in this respect. While an employer may believe they are looking at its candidate’s page, the account they are considering may be completely unrelated to the person in question. Likewise, an employer may take statements made on social media by or about a person as true when it is not necessarily correct.
2. Over-collection of Information
Social media background checks can often result in the collection of far more information than may be reasonable or necessary. An employer should bear in mind that a significant amount of content posted on social media platforms will be irrelevant for their purposes. In light of this, employers should consider what they are seeking to collect, and whether they can control what information they are collecting. For example, sometimes the information collected can be outdated or reach too far into the past.
3. Collection of Third-Party Information
While an employer may obtain consent from the prospective employee, in viewing that person’s profile, the employer may come across a plethora of information posted by other third party individuals. Such collection of third party information can result in the same issues that arise from over-collection, and can constitute a breach of privacy laws.
4. Adequate and Ongoing Consent
While an individual may initially consent to a social media background check, they are entitled to withdraw consent at any time. If a prospective employee revokes consent, the employer can generally no longer rely on the background check to make a decision about the candidate.
5. Third Party Providers
While some employers might typically contract their employee background checks to third party providers, they are still subject to the laws of the province. Employers should consider what practices third party providers may utilize in conducting background checks, and ensure that they are not inadvertently receiving personal information about the candidate that runs afoul of the legislation to which they are subject.
6. Human Rights Considerations
Under human rights legislation, there are certain characteristics that employers may not consider in hiring. These characteristics, or prohibited grounds, include: race, religious beliefs, colour, gender, family status, and sexual orientation. Given the risks of over-collection inherent in social media background checks, the possibility of obtaining information related to prohibited grounds is high. Thus, social media background checks can lead to a higher risk of being subject to a human rights complaint.