Given the rise of social networking in the past decade, it is no huge surprise that employers have become interested in mining this newfound technology for information about prospective employees.
There is a recent alarming trend in the United States however, where employers have been asking employees to provide their facebook passwords during the interview process so as to grant the employer access to a wealth of additional personal information about the prospective employee.
Though this type of background check may be arguably legal where carried out with the employee’s consent; one has to wonder what the implications are for the employer in making such a request.
First of all, notwithstanding the fact that access to a social media website such as Facebook may be only obtained by virtue of an employee’s consent; the validity of this consent is questionable when the employee is asked to provide this in the course of his or her application for a job. A prospective employee does not have much of a choice on the issue if they would like to be considered for the position in question, particularly given the limited job opportunities in certain industries.
Second of all, putting aside the issue of consent, an employer should ask themselves what information do we hope to obtain through this check. Employers should be wary of relying on the accuracy or truthfulness of any information found on such social media websites, as they are used primarily for recreational purposes. Furthermore, some of the information that may be garnered on such sites with respect to a prospective employee (whether inadvertently or not), such as one’s marital status, sexual orientation or religion, could lead to a potential human rights complaint under the Human Rights Code (Ontario). For example, where an employer requests a candidate’s consent to use their Facebook password to access their Facebook account as a pre-condition to hiring, and where such a candidate is subsequently not hired, the employer may open itself up to a human rights complaint on the basis of employment discrimination on one of the above-referenced prohibited grounds.
Finally, employers should consider how access to a prospective employee’s social media website may render them inadvertently privy to another person’s confidential information, particularly where such person has imposed a privacy setting that the public normally would not have access to, or where the employer gains access to private personal messages sent between the prospective employee and other social media users.
In response to growing public concern and protests by such groups as the American Civil Liberties Union, US Congress has made several recent attempts to pass legislation whereby employers would be fined, in one proposed bill, up to $10,000 for attempting to force workers into giving up their social media passwords. Notwithstanding the implementation of such legislation in the U.S., employers in Canada should be very cautious in utilizing such social media background checks in the application process with prospective employees, unless it is absolutely necessary or particularly relevant with respect to the position in question.