Social Media and Background Checks Information Privacy and Data Protection Lexpert Seminar Lyndsay A. WasserDecember 9, 2013

Social Media – Recruitment  Social Media can be a great tool for recruitment: o LinkedIn o Facebook  Referrals  Application Tools 2

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 3

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 4

Social Media – Background Checks (cont’d)  Information posted online is still “personal information”  Personal information is broadly defined, with few exceptions 5

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” 6

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? 7

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 8

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 Alberta PIPA and BC PIPA each require notice  Reasonableness & Collection Limitations o Irrelevant information  Outdated/inaccurate information 9

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 10

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 11

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 12

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 13

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 14

Social Media – Disciplining Employees  Must balance: o Employer’s ability to manage the workplace o Employee privacy rights 15

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 16

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 17

Social Media – Disciplining Employees (cont’d)  Lougheed Imports Ltd. (c.o.b. West Coast Mazda) o Postings - offensive, insulting and disrespectful o Urged people not to spend their money at West Coast Mazda o Dishonest during investigation o Termination upheld 18

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 19

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 20

Questions?