Can my Employer Look at my Social Media?
Background checks have become an increasingly common tool for employers in the course of hiring new employees, with as much of 90% of employers stating that they make employment offers conditional on such checks.
What Are an Employer’s Obligations When Conducting a Background Check?
On the surface, this is a logical and reasonable step – no matter how good a candidate’s CV looks or how well they present in an interview, employers would want to know if they are potentially hiring a former violent criminal, sexual offender, or three children in a trench coat pretending to be one adult.
However, employers have certain obligations with regard to such background checks. First, the candidate must provide consent for the employer to go snooping – usually this is a term that is included in the employment offer.
The second is proportionality in scope – employers are expected to tailor their background checks to job-related concerns. For example, getting information on a candidate’s driving history may make sense when hiring for a truck driver, but would be irrelevant for a bank employee. On the other hand, said prospective bank employee’s financial background may be relevant information, but not the truck driver’s.
Can Employers Look at a Candidate’s Social Media?
Social media checks are also becoming increasingly prevalent, but these touch on the issues of relevance and proportionality. Social media is by definition public, and therefore it is perfectly legal to view a candidate’s profile. However, employers must be wary about how they gather and utilize this information. It may be a bad idea, for example, for an employer to demand that the employee divulge their pseudonym on Instagram, or give access to an otherwise private account.
Can an Employer Take Back a Job Offer After a Background Check?
Similarly, employers have to be careful about relying on information gleaned from social media to deny a job offer. There may be no way to prove exactly what photo or post caused such a decision, leaving the employee open to claim that anything on the profile was the reason. By way of example, assume that an employer denied an employee an opportunity after reviewing her Facebook profile, and provides no further information. Of the many things the employee has posted, one was a reference to her religious beliefs. The employee now has an opportunity to claim that it was this post that caused the employer to revoke the job offer, and that she was therefore discriminated against on the basis of her religion.
Another factor is the common law rules of withdrawing an offer on the basis of a background check. If the employee has relied on the offer and resigned from their previous job as a result, the employer may face legal liability if they withdraw the offer.
How can Whitten and Lublin Help?
Background checks are common, but the way in which they are implemented can be wide ranging and have a number of consequences for job offers. If you are an employee who is looking for advice on dealing with a background check, or has had a job offer rescinded following one, Whitten and Lublin is here to help. Contact us online or by phone at (416) 640-2667.
Author – Aaron Zaltzman