I spoke today at The Canadian Institute’s “Managing Business and Legal Risks in Social Media” conference in Toronto. I’ve talked about this topic before, but I have advanced my thinking lately.
For one, I’ve developed some new thoughts on the subject of notification and consent to conduct “internet background checks” on potential candidates. I’ve gone from suggesting that, as a matter of policy, employers have no reason to forgo seeking consent to believing that, in some circumstances, manipulation of published information may be too great a concern to allow for notification and consent. The right answer, from a policy perspective, depends on an employer’s precise objectives.
Of course, those employers who are regulated by privacy legislation must seek consent to collect personal information from the internet for candidate screening purposes unless they can rely on a “publicly available information” exception. These exceptions are worded fairly broadly. PIPEDA, for example, carves out the following from its consent requirement:
“personal information that appears in a publication, including a magazine, book or newspaper, in printed or electronic form, that is available to the public, where the individual has provided the information”
Though some might argue that everything posted online does not “appear in a publication,” I’d rather argue the opposite. The other relevant limitation evident from the language above is on seeking information “provided” by persons other than the subject of the check. The Alberta and British Columbia statutes have similar carve outs from their consent rule. An interesting and relevant topic. Do you have a view? Please comment.
The other question I addressed today was, “How should the formal employment contract (as opposed to policy) be used to protect against employment-related social media risks?” The answer I gave today is “not much,” though I’m an employment contract minimalist. I do like the idea of “surfacing” and expressly dealing with potential conflicts that are foreseeable based on a candidate’s established online profile and established media properties, but otherwise think employers should deal with social media issues through policies that are ancillary to formal contractual documentation but incorporated by reference.
Slides with complete thoughts on the legal requirements for conducting internet background checks and more below!