More thoughts on employee online speech

June is conference season, and this year the hot topic has certainly been online speech. I spoke first in mid-May at our Toronto client conference and posted some ideas about the dangers of over-reaching. Then, last week, I spoke at the Canadian Association of Career Educators and Employers and posted some ideas about applicable privacy principles, human rights and records management concerns.

Today I spoke at our Burlington client conference together with Jonathan Maier. Here are two excerpts from our speech. Please keep in mind we act exclusively on behalf of management, and though we mean to encourage a fair and reasonable approach, our comments are addressed to management’s perspective.

First, some thoughts on necessity and reasonableness in collecting personal information for recruiting purposes:

Finally, the “necessity” and “legitimate purposes” principles are applicable. As against these principles, we are most likely to succeed in justifying screening a candidate’s online presence if we need to do so to see whether it gives rise to a conflict of interest or potential conflict of interest.

To give this some meaning, let me explain two more problematic uses.

One is randomly searching for any “dirt” on prospective employees regardless of the potential for conflict. Even if information is available, privacy principles demand that we have a reason to collect. So if we are only hiring a production employee, for example, can we really justify screening her online presence at all?

The second questionable use is using online information to profile candidates or, in other words, to assess their potential job performance. I can see this as being a legitimate purpose for hiring individuals into some jobs – internet writing or internet marketing jobs for example. Otherwise I have concerns about the validity of profiling. And if you can’t prove your profiling exercise is valid, under privacy principles you have no basis for collecting the information that that will form the basis of your profile.

And now a thought on managing speech by former employees (presented immediately before some ideas on working with ISPs).

There are two key differences in managing online speech by former employees. First, you can’t take away their jobs, so lack practical leverage because you need to sue them or threaten them with a valid lawsuit to get them to take information down. Second, former employees have no duty of loyalty and fidelity. This means that they can say things that are not in your interest, and so long as these things are not defamatory, made in breach of confidence or made in violation of some other law, you won’t have recourse. You need to be able to claim the speech is unlawful in and of itself, which will no doubt leave you having to tolerate some speech you just don’t like.

Now if the speech is unlawful you will have a basis for seeing that it is taken down. But as a word of warning we’d like you to take one thing away from this: have your lawyer do a good up-front assessment of the legality of the speech so you know that you’re taking a position that you can commit to. I’ll come back to the risks of over-reaching in a bit.

I’ve enjoyed addressing this his very relevant topic hope you find these ideas helpful.