WORKPLACE LAW PRIVACY RULING DEFIES SOCIAL MEDIA REALITY
Everyone loses by forbidding use of posts in hiring moves, Howard Levitt writes.
When it comes to government regulators, the law of unintended consequences invariably arises. Any government employee in 2018 realizes — and has, for some years — the need to diligently control their social media feed. Too many employees have not been hired, or have been fired, for abhorrent, inappropriate or simply goofy posted words or conduct that finds its way to their employers’ eyeballs. Too often, they remain blissfully unaware as they scratch their heads quizzically, wondering why, once again, they have been passed over for a deserved promotion. High schools and universities that fail to warn their students of the consequences of what they put on social media are being reckless with their future careers. Donovan Molloy, the Information Privacy Commissioner for Newfoundland and Labrador, has just ruled that the information employees post on their social networks, such as Facebook and Twitter, cannot be used by employers in making hiring decisions. “There are things that are accessible but not necessarily meant for everybody,” he stated. “They are not meant for publicbody employers to use as an indirect source of determining whether or not you are somebody they might want to hire.” He warned that government and other public bodies, without consent from the prospective employee, cannot review social media accounts. Further, even with that person’s consent, they still should not look at social media accounts, as material might be outdated, might indirectly lead to information about third parties and might provide information about matters that they should not know, such as that the employee is disabled or trying to become pregnant, which “could be used to discriminate against people.” Molloy proceeded to invite employees who believed that their employer might have ever reviewed their Facebook account to file a complaint, noting that he has the power to both search and compel the production of documents. My first reaction was that Molloy is simply daft. (I tried to consider another option but couldn’t.) The reality is that employers are reviewing the social media accounts of every new recruit and Molloy’s ruling will not change that, not in Newfoundland or anywhere else. But it will have one impact. Before, employers might have asked employees about apparent indiscretions spotted on social media, so as to provide them an opportunity to explain it away,
There are things that are accessible but not necessarily meant for everybody.
but now they won’t admit to having seen it. Employees will now be deprived of a job, promotion — or be fired — purportedly for some other reason, such as a reorganization, without ever learning that the real reason was a social media posting. They will be deprived of the opportunity to convince their employer that this information was inaccurate or to otherwise explain it away. As well, Molloy’s interpretation of the law is ludicrous. If an employee posts something on their account, that is implied consent for anyone to view and utilize it. For example, if an employee defames their employer on social media or makes statements antithetical to that employer’s interest, it will be no defence in court to argue that the employer should not have reviewed their social media feed. Such an argument has never been credibly advanced in any such case. From a policy standpoint, the more information employers and employees garner about each other, the greater the likelihood that they will make the bestinformed decisions and have the information necessary to ask the right questions during the interview process. It is not always the law that is an ass, as they say, but perhaps those purporting to invent it are. Financial Post Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. The most recent of his six books is War Stories from the Workplace: Columns by Howard Levitt. Email: hlevitt@levittllp.com; Twitter.cm/HowardLevittLaw