Canadian HR Reporter

CANADIAN HR REPORTER May 4, 2015 18 FEATURES BACKGROUND SCREENING Checking in on employees What are the legal considerations when it comes to screening existing workers? By Cristina Toteda T he legality of background screening has long been of interest for employ- ers. Can an employer subject a prospective candidate to a back- ground check? To what extent can an employer ask a prospec- tive candidate for references or inquire into previous criminal convictions? But a related question merits fur- ther attention by employers: Once an employee is already hired, can an employer continue to "check in" on him? With the vast amount of in- formation available on the In- ternet and the increasing use of social media, employers should be aware of the legal consider- ations surrounding the practice of screening employees who are already on the payroll. Screening can take many forms. Some employers may look into whether the information provid- ed by employees is accurate, such as prior experience or education. Other employers may peruse employees' social media pres- ence, as on Facebook, Twitter or Instagram. Screening may involve an em- ployer verifying whether an em- ployee has recently been involved in any civil or criminal matters — accessing such information about an employee is generally a matter of court record or public record. Other employers are legally required to screen employees be- cause it's a safety-sensitive sector. Legal considerations The practice of screening em- ployees gives rise to important concerns regarding privacy as it involves the handling of personal information. e latter term is defined in privacy statutes as any information about an identifiable individual. is is a very broad definition that encompasses any- thing from a Facebook profile to educational credentials or court records. In many provinces, legislation establishes the ground rules for using and collecting personal in- formation. e federal Personal Information Protection and Elec- tronic Documents Act governs this practice for federally regulated employers. Alberta, British Columbia and Quebec have adopted substan- tially similar privacy legislation that applies to provincially regu- lated private sector employers. In other provinces, the common law determines when an employer can legally screen an employee. All provinces have specific leg- islation regarding the handling, collection and use of personal information by public sector em- ployers but this article concen- trates on the requirements for employers in the private sector. What privacy law says Privacy laws establish strict boundaries as to when and how personal information can be col- lected, used or disclosed. Gener- ally, prior to collecting, using or disclosing personal information, organizations must obtain the individual's consent and notify the individual of their intentions. However, legislation provides situations where it is possible to dispense with obtaining consent. For example, in Alberta and B.C., a private sector employer may collect "employee personal information" without the consent of the individual where the col- lection is reasonable for the pur- poses of establishing, managing or terminating the employment relationship. "Employee personal information" does not include information that is not about an individual's employment. e employer is still generally required to notify the individual it will be collecting, using or dis- closing such information, as well as the purpose of the collection, use or disclosure, before it begins collecting, using or disclosing the personal information, even if it is permitted to do so without the employee's consent. Employers in Alberta and B.C. may collect, without the employ- ee's consent, personal information that is not about an individual's employment where this personal information is "publicly available personal information," which is defined in the regulations as, among other things, personal information of an individual that appears in a professional or busi- ness directory or notice, in a gov- ernment registry or in a printed or electronic publication that is available to the public. In Quebec, a private sector em- ployer may only collect personal information "for a serious and le- gitimate reason" and, even then, "only the information necessary for the object of the file." An employer can only collect information from the person con- cerned, unless the latter consents to collection from third persons. Exceptionally, an employer may collect personal information from a third person if it is neces- sary to ensure the accuracy of the information and it has serious and legitimate reasons for doing so. However, where an employee has made personal information available publicly, the employer can collect and use this informa- tion as the employee no longer has any expectation of privacy in this information. In all circumstances, even where the employer obtains the employee's prior consent, the only information that can be collected, used or disclosed is that which a reasonable person would consider appropriate or reasonable. Therefore, in these jurisdic- tions, there is nothing problemat- ic with an employer verifying on- line, in publicly available forums, whether employees are discussing the employer inappropriately or whether an employee has been honest as to the reasons behind an absence. However, it is important to keep in mind most information employees post on their social media accounts or elsewhere on the Internet has nothing to do with work, such as marital status or pictures of their children. Wall- to-wall monitoring of employee social media can more easily lead to privacy violations. is is especially so if the per- sonal information is not easily ac- cessible and requires a password. Furthermore, such a practice can also lead to human rights com- plaints should the employer have collected information related to prohibited grounds of discrimina- tion and taken any decision with respect to an employee. It is important to keep in mind privacy laws require that infor- mation that is collected be ac- curate before it is used to make a decision in relation to the person concerned. erefore, an employer should be cautious before making a deci- sion regarding an employee based solely on information found on- line. Simply because an account bears an employee's name does not mean the content is of the employee's doing. Provincial differences In provinces without provincial privacy law that is applicable to private sector employees, the common law may still provide some privacy rights. Before en- gaging in employee screening, the crucial question remains whether the employer has an interest in the activities of the employee that trumps any legitimate privacy in- terests the employee may have. On the one hand, an employer will be justified in monitoring a blog set up by an employee that belittles clients and violates a confidentiality agreement. Simi- larly, an employer will be justified in collecting offensive comments made by an employee about his supervisors on Twitter. In such situations, it is difficult for an employee to make a suc- cessful argument that she had a reasonable expectation of privacy in the content of a publicly acces- sible blog or a Twitter page. On the other hand, it is highly unlike- ly an employer will be justified in monitoring an employee's online dating profile — an employer is unlikely to have a justifiable inter- est in such activities. It is also important to recall that the collection of personal informa- tion must be reasonable and rea- sonableness will be assessed based on the nature of the employment. Employers should also limit the amount of information collected and be cautious to not inadver- tently collect personal information regarding other individuals who are not their employees. Finally, employers should al- ways keep in mind employees generally have a right to access the personal information that concerns them, which is col- lected, used or disclosed by their employer. Cristina Toteda is an associate in the labour and employment group at McCarthy Tétrault in Montreal. For more information, contact ctoteda@ mccarthy.ca. Credit: madpixblue (Shutterstock)

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