When using social media as a pre-employment screening tool, recruiters must look at privacy concerns related not only to the applicant – the individual's 'friends' must also be considered, says Toronto and Windsor employment lawyer Sheila MacKinnon.

A partner with Shibley Righton LLP, MacKinnon recently spoke at the Ontario Public School Boards' Association’s 2014 Labour Relations Symposium on the topic of social media in the workplace.

The presentation was part of a three-day event focused on the topics of education labour relations and human resources. MacKinnon participated in a session that examined when social media sites can be used for pre-employment screening; how to balance an employee’s right to privacy with an employer’s right to surveillance of electronic devices; trustees’ use of social media and what’s appropriate; and what can be done about students’ or employees’ use of social media to criticize the board or harass an employee.

School boards are subject to the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), which means collection of personal information usually requires the individual’s consent, the presentation says.

However, MacKinnon says, s. 52 (3) 3 may apply in some cases, excluding the application of the act when dealing with records collected, prepared, maintained or used by or on behalf of an institution in relation to meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest.

The Office of the Information and Privacy Commissioner of Ontario (IPC) has found that “records relating to recruitment and screening are employment-related matters within the meaning of s.52 (3) 3,” the presentation reads.

“Even if the MFIPPA applies, the IPC has found that if information is only viewed and not printed or downloaded then it is not being collected by the institution.”

While viewing publicly available social media pages isn’t likely to be a problem, MacKinnon says asking for passwords or sending friend requests to potential employees is where the activity becomes more intrusive.

“Much of the information on a Facebook page would not be relevant for employment purposes and may breach the applicant’s friends’ privacy,” the presentation says.

On the topic of surveillance of electronic devices, MacKinnon a balance must be struck between an employee’s right to privacy and the employer's interest in safety and security.

Generally, the test for conducting surveillance considers whether there were reasonable grounds for conducting the search; if monitoring was necessary to meet the legitimate employer’s purpose; and whether the least intrusive method was used.

When a school board trustee is using social media, they must remember they are a trustee 24 hours a day, and consider whether it’s clear if they’re speaking on behalf of the board or presenting a personal view.