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In the digital age, the recruitment landscape has expanded beyond traditional methods, with social media becoming a significant tool for evaluating potential candidates and completing background checks. However, the practice of « creeping » on candidates’ social media profiles during the hiring process raises important legal considerations for employers.
Research from a recent study of Canadian employers indicated that 65% of companies surveyed use social media screening during the hiring process, and 41% of those companies had rejected applicants because of what they had found.[1] Despite the prominence of this practice, there are potential human rights and privacy pitfalls that an employer must be careful to avoid when screening a job applicant’s personal social media accounts.
Human Rights Considerations
The Alberta Human Rights Act (“AHRA”) provides legal recourse to job applicants if they are rejected based on a “protected characteristic.” The protected characteristics are listed under paragraph 7(1)(b) of the AHRA and include race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation.
In order for an unsuccessful job applicant to be granted a legal remedy pursuant to the AHRA, they must establish a prima facie case of discrimination. Generally the unsuccessful applicant must show that they have a protected characteristic, that they suffered a disadvantage or adverse impact, and that the protected characteristic was a factor that contributed to the disadvantage or adverse impact.[2] The onus then shifts to the employer to demonstrate that the applicant’s protected characteristic was not a factor in the decision. An effective defence often involves demonstrating that the employer was unaware of the applicant’s protected characteristic and therefore the protected characteristic could not have been a factor in the decision. As a result, employers are advised to avoid questions related to protected characteristics during job interviews and reference checks.
However, advancing a defence that an employer was unaware of an applicant’s protected characteristic will be particularly challenging if the employer has screened an applicant’s social media which has evidence of their protected characteristic(s). Social media can contain a plethora of information about an individual that crosses into the realm of protected characteristics, examples could be pregnancy announcements, posts about injuries or disabilities, affiliations with ethnic or cultural organizations, etc.
While the employer may have set out with good intentions, it is difficult to predict what one may find when conducting these searches. The inability to predict, control or limit what information is obtained by these searches presents risks that employers should consider before conducting such checks. Once collected, information can be difficult to disregard. The employer may stumble upon information it did not set out to find, and that information could factor into hiring decisions, either deliberately or through unconscious bias, in violation of the AHRA.
Privacy Law Considerations
In addition to the human rights risks, private sector employers in Alberta must navigate the Personal Information Protection Act (“PIPA”). PIPA governs the collection, use, and disclosure of personal information and personal employee information. “Personal Information” is broadly defined as all information about an identifiable individual. Whereas “Personal Employee Information” is more narrowly construed and is defined as information reasonably required by an organization for the purposes of establishing, managing or terminating an employment relationship. Notably, the definition of “Personal Employee Information” expressly excludes information about the individual that is unrelated to the employment relationship.
PIPA permits employers to collect, use and disclose Personal Employee Information about prospective employees without consent for reasonable purposes related to recruitment.[3] However, before engaging in social media screening of the personal social media accounts of applicants, employers should ascertain their business purpose for undertaking such checks and evaluate the appropriateness of doing so. Employers must demonstrate the reasonableness of utilizing social media for the collection of Personal Employee Information and must consider whether such a check will result in collection of information that is unrelated to the prospective employment relationship. It is imperative for employers to assess what unique insights a social media screening can offer that cannot be obtained through conventional methods like reference checks and interviews.
Employers should be cautious about inadvertently collecting information about third parties during social media screens, which may not be permitted under PIPA. PIPA also requires employers to take steps to ensure that the information they collect and use is accurate. Social media accounts may contain inaccurate or out-dated information about job applicants, and employers should therefore be cautious about collecting or relying on that information.
Depending on the nature of the information collected, if the information is publically available, and whether or not the job applicant is an external applicant or current employee, the employer may need to provide notice to the job applicant, or obtain their consent, before conducting a social media screen.
For more information, employers are encouraged to review the Guidelines for Social Media Background Checks developed by the Office of the Information and Privacy Commissioner of Alberta.
Best Practices
While social media background checks may appear enticing, there are legal risks associated with screening a job applicant’s personal social media accounts. While this practice may provide insights into a candidate’s character and qualifications, employers in Alberta must proceed cautiously. Respecting candidates’ privacy rights, focusing on job-related information, avoiding discriminatory practices, and ensuring the accuracy of information gathered are paramount. The first and safest option may be to refrain from conducting social media screening of job applicants full-stop. Using this strategy, an employer protects themselves from unintentionally discovering that a job applicant possesses a protected characteristic, or violating privacy laws by collecting irrelevant, inaccurate or too much information. In particular, employers should consider the following questions before proceeding:
- Is the social media screen reasonable?
- Will the social media screen collect information that is related to protected characteristics, overly broad, or unrelated to the hiring process?
- Will the social media screen collect personal information about third parties?
- Is the information collected accurate?
- Is notice or consent required before conducting the social media screen?
Employers should establish a well-documented hiring process with transparent hiring criteria, educate hiring personnel on ethical and legal considerations, and seek legal guidance to mitigate risks associated with social media screening.
Should you have questions about the legal risks associated with social media screening and how this may impact your organization’s hiring practices, please contact a member of our Labour and Employment group.
[1] “From Instagram to Insta-Fired: 86% of Canadian Companies Would Fire Employees for Inappropriate Social Media Posts.” Express Employment Professionals, January 11, 2023, https://www.expresspros.com/CA/Newsroom/Canada-Employed/From-Instagram-to-Insta-Fired—86-Percent-of-Canadian-Companies-Would-Fire-Employees-for-Inappropriate-Social-Media-Posts.aspx.
[2] Moore v. British Columbia (Education), 2012 SCC 61
[3]Note that reasonable notice is required in the case of current employees, such as in the case of social media screening before a promotion.
