Social Media Screening For Job Applicants: Human Rights And Privacy Risks Alberta Employers Should Be Aware Of – Social Media

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.

Footnotes

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.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.