The Hiring Process – Can An Employer Use Social Media?

By Greg Pratch
Categories: Blog, Employment Law

With the ever-changing technology and innovation of social media and the potential uses for it, a question that is often asked by employers is whether they can use social media to perform a ‘background check’ on potential employees. For example, if a candidate sends their resume to a potential employer, can that employer look them up on Facebook? Twitter? Can the employer use Google to give them a list of what is out there? And most importantly, can an employer then use the information they collect in order to make a decision regarding the job candidate?

These types of searches are tempting for an employer because they are a quick, easy and inexpensive way to do research on potential candidates; however there are a number of risks associated with using social media to screen candidates. In a document title “Guidelines for Social Media Background Checks”, the Office of the Information and Privacy Commissioner lists the following risks associated with this activity:

  1. Accuracy – the risk is that the information you are collecting is outdated and no longer accurate or was not accurate in the first instance. This is a risk to an employer because under the Personal Information Protection Act (“PIPA”) an organization is required to take reasonable steps to ensure that information they collect is accurate.
     
  2. Over-Collection of Information – PIPA requires that an organization only collect the information they need to collect and social media background checks can lead to the collection of far more information that what is needed to make a decision regarding a potential employment opportunity. There is also a risk of collecting personal information about a third party (ie. a person’s friends or family on their Facebook page).
     
  3. Consent – some organizations have asked individuals to consent to a social media background check as part of their application, and the risk associated with this is that the candidate then has the ability to withdraw their consent and the organization would then have to disregard any information they have collected in this regard.

Additionally, pursuant to PIPA, an organization has an obligation to retain information for a one year time period if the information was used in making a decision that directly affects the individual. So, by completing a social media background check an organization must keep a record of the information they collected and how they used it for a one year time period which can be an administrative burden.

Accordingly, while completing a social media background check might be very tempting, as an employer, it may be wise to consider the above risks and consult with legal counsel if you are concerned about the consequences of a certain course of action.

Greg Pratch is a lawyer at Pushor Mitchell LLP. You can contact Greg at (250) 869-1194, or at pratch@pushormitchell.com