Privacy Law and the Workplace: Job Applications

by Shaya Silber, Toronto Privacy Lawyer

Employers have access to unprecedented amounts of information on their employees and job candidates. Many people, especially young people, don’t realize how much information they are publishing about themselves, and what the possible implications are.  The Onion posted a video about how every presidential candidate in 2040 has already been disqualified because of internet posts that will come back to haunt them. While the Onion’s clip is obviously a spoof, there is some truth to it.

Any post or comment that is posted on Facebook, Twitter or other social media has the potential to remain online and available to the public indefinitely. What may seem like a humorous or harmless post to an 18-year-old college freshman, might be viewed differently by a job recruiter down the road. Careless posting can be serious, resulting in lost jobs and other opportunities.

However, a number of stories have surfaced recently about employers asking job candidates for their Facebook passwords in order to gain access to information that would otherwise be considered private.

In response, the Information and Privacy Commissioner of Ontario (the IPC), recently put out a report on privacy in the workplace. The report discusses how the web has become a central tool for human resource professionals in vetting potential job candidates.

Information that is available online to the public is fair game for employers. However, employers should be cautious about demanding Facebook passwords from employers. This may lead to claims, including lawsuits for violation of privacy. It is too early to determine whether the tort of Intrusion upon Seclusion applies to cases like this, as it has not yet been tested in the courts.

Furthermore, employers should be cautious regarding the amount of information they gather, as well as the impact said information has on the hiring decision.  Decisions based on information gathered online, such as a candidate’s social networking account, could potentially lead to a human rights complaint. The report states that:

human rights and privacy laws provide stronger protections for job applicants. Employers cannot ask for information that may directly or indirectly reveal a prohibited ground of discrimination.