Employee rights to protection of personal information
Many British Columbians are active on social media, leaving personal information online for the public to view. When you apply for a job, it can be tempting for the employer to add "social media" to their reference check process to find out more about you than your resume might say.
Consent required
Unless you specifically consent, social media reference checks are likely a breach of your rights under the Personal Information Protection Act. When you send your application and resume to a potential employer, you are providing to them important personal information about yourself, for the purpose of being considered for employment. If the employer takes personal information provided for that purpose, such as your name, work history, and location, and uses it to search for and review your Facebook profile, they are using your personal data to gain information you may not intend for them to have.
What about LinkedIn?
The answer may be different if you include your LinkedIn, Twitter, or Instagram handle on your resume. This is becoming more common, especially as individuals use social media to market themselves. If you include your social media information in your job application and the potential employer uses that information to review those social media outlets, then there is likely no breach of your personal information protection rights. It may be different if you provide your LinkedIn profile, and the employer views that and also finds your Instagram, which you did not provide.
It is arguable whether accessing LinkedIn is really a breach of your personal information at all, given one of the main purposes of LinkedIn is to develop one's personal brand for career advancement. Even so, it is best practice for the employer to request your LinkedIn profile if you have not provided it, or notify you that they will search for and review your LinkedIn or other social media profiles and provide you an opportunity to deny consent (or at least increase your security settings).
Risk of discrimination
One risk of social media checks is that the employer may make hiring determinations based on protected characteristics that are not obvious from the application itself. For example, a person who uses a wheelchair may apply for a job. It's not apparent from the application that the person has a physical disability. The potential employer searches the applicant on Facebook and is able to identify her by the location and job history provided in her application. The employer sees from her photos that she uses a wheelchair and determines that she has a physical disability. The employer assumes she will need some accommodation, and chooses a physically able applicant instead.
Social media checks are risky for the employer too
Clearly social media reference checks are dangerous for the employer as well. Even if the employer had selected the physically able applicant because they were better qualified, and not in relation to their physical ability or lack of potential accommodation, there is an appearance of discrimination because of the social media check. It will be difficult for the employer in this situation to show that their decision was not tainted by discrimination based on physical disability.
Over-exposing your own personal information
There may be situations where the employee limits their own right to personal information protection. For example, an employee provides their LinkedIn profile in an application, but uses their LinkedIn account to promote hateful video content they post to YouTube. The employer reviewing the LinkedIn profile and encountering, or even visiting the YouTube channel, is probably within their rights to disqualify that applicant based on social media that the applicant may not have directly consented for them to access.
Monitor your online reputation
This is an newer area of law that is becoming more relevant as individuals and employers rely increasingly on social media. So even though it may be unlawful or improper for a potential employer to check applicants' social media without their specific consent, it is likely the practice will continue. Employees searching for work should be sure to safeguard their online reputation by applying appropriate security settings to their social media accounts, and carefully monitoring their online comments, photos, and video content.
About the Author
Julianne Yeager helps employees and small businesses understand their rights and duties in the workplace. If you would like to schedule a meeting with Julianne Yeager or any other of our lawyers, give us a call at 604-988-1000.
