Law Times

Page 4 December 10, 2012 • Law Times NEWS employers warned about limits on background checks HR may not be aware of extensive online probes of employees, job applicants BY ELIZABETH THOMPSON For Law Times OTTAWA — Employers who check out the Facebook pages of their employees or those applying for a job could be opening themselves up to accusations of breach of privacy, according to two top employment lawyers. "Polls have shown that it is very common practice these days among employers to use social media and the Internet for background checks on employees," said Barbara McIsaac of Borden Ladner Gervais LLP. "Is this a breach of privacy? Well, in my view, yes, it is a breach of the employee's privacy or the prospective employee's privacy." Daniel Michaluk, a partner at Hicks Morley Hamilton Stewart Storie LLP who largely represents employers, said some human resource managers might not even be aware that the checks are happening. "You hear a lot about these cases. I actually don't think it is going on formally in many cases. I think it is going on in backrooms by line managers without HR's knowledge. I think employers have to get that under control." The comments came as lawyers from across the country gathered for the Canadian Bar Association's 13th annual conference on administrative labour and employment law in Ottawa. One of the hottest issues in employment law is the use of new technologies as companies install software to monitor their employees' e-mail, check out applicants' social media activities, and use video surveillance, GPS technology, and biometrics to track their staff. "The scope of knowledge and the sharing of information is of a scale that I think would have been undreamed of by our parents and grandparents," lawyer Michel Picher told the conference's seminar on social media, biometrics, and privacy. "Your clients, tribunals are travelling in uncharted waters where these issues are concerned," he added. Recent rulings such as the Supreme Court's decision in R. v. Cole have also changed the employment law terrain by giving Some human resource managers might not be aware that background checks are happening, says Dan Michaluk. employees a greater expectation of privacy even if they're using equipment such as computers or cellphones supplied by their employers. However, Michaluk said Cole might also give employers a certain right to access employee information. "The expectation of privacy is here to stay, but Cole will, in the end, leave management with a broad right to access work system Ex-teacher denied licence to practise law BY YAMRI TADDESE Law Times T he Law Society of Upper Canada has declined to allow a former teacher who lost his job after his conviction for sexually exploiting a 14-year-old student to practise law. In a Nov. 19 ruling, a law society panel deemed James Melnick "not of good character" and rejected his application to practise as a lawyer in Ontario. In 2006, Melnick, now 36, pleaded guilty to two charges of sex with a minor. The court sentenced him to six months in prison and had him listed in the sex offender registry until 2016. Melnick taught the 14-year-old in grades 7 and 8 and was her guidance counsellor for a year. Their relationship then progressed to phone and e-mail communication before it escalated into kissing, sexual touching, and oral sex. The law society decided to seal more than 500 e-mail conversations between Melnick and the girl that contained "graphic and embarrassing information" out of concern that it may identify the victim. The victim, identified as A.S., testified before the law society hearing panel. In its ruling, the panel said she had become "obsessed with reading things online about these proceedings" and that "she is afraid of reverting to the state she was in after her experience with the applicant — suicidal and out of control." "If the panel were to make a decision that the emails had to be public, it would have an extremely negative effect on her," the panel ruled. In July 2011, Melnick told the panel his offence was an "aberration" and that he now has the good character necessary to become a lawyer in Ontario. "It was a mistake, a very serous mistake, I made that hurt a very great number of people. I'm aware of it and I own it but I don't consider it a part of my character," Melnick told the panel. "I feel awful and very remorseful for it. I wish I could undo it more than anything but I can't." LT data," Michaluk told the seminar. In the wake of the Cole ruling, it's all the more important for employers to draft clear privacy policies and to communicate them to employees, said McIsaac and Michaluk. Checking the social media sites of employees or prospective staff members is one of the biggest issues in employment law, said McIsaac. "This has become a really hot topic. There is so much out there on the Internet. It used to be only people who had some profile would have something on the Internet. Now, just about everybody does whether it be your own Facebook page, whether it be your kids' Facebook page where they have tagged some pictures of you." In addition, people don't even have to set up a Facebook page in order to find themselves on the popular social media site. "All you have to do is go to a bar and look a bit silly and have a friend take a picture and post it on their Facebook page and all of a sudden, there you are." There's also a risk that rejected applicants could argue they didn't get the job because of information on their Facebook profiles showing their marital status or their religious or political views, said McIsaac. She said employers should notify employees or applicants if they plan to do social media background checks and notes there are limits on what companies can do. "Some employers have gone so far, if you've got a limited access Facebook page, to ask for your password so they can look at your Facebook page. In my view, there is no obligation on an employee to provide that password and it is improper to ask for it. "It is a different matter if the employee or the individual has an open Facebook page with no restrictions on it." McIsaac recommends employers consider less intrusive ways of achieving their objectives and do a privacy impact assessment. "From an employer point of view, following a regime like this, conducting an impact assessment, answering these questions is an invaluable tool if there is a complaint so if at some point your employee or employees complain against your information-collecting practices and you go before a privacy commissioner or indeed if it is an arbitration situation . . . the test is bound to be was what you were doing reasonable? Was it well thought out?" McIsaac said ignoring employee privacy rights can be costly. "If you don't abide by your employees' privacy rights, there is a distinct possibility that damages can be awarded against you. "The courts have been fairly modest in damage awards because it is very difficult to show any actual loss, which they look for, although there are some punitive awards available in certain circumstances for a flagrant disregard." Michaluk said emerging technologies are providing new tools for employers to keep track of their employees. "Employers are now installing software on their systems to monitor the content of e-mails for things like SIN numbers. If it looks like a SIN number, we get alerted. For things like credit card numbers, if it looks like a credit card number, we get alerted. . . . They are looking for misconduct and they install these filters on their system and it alerts them to these problems." According to Michaluk, there are several legitimate purposes for employers to access employee information: to engage in technical repair and management, to meet a legal requirement to produce, to improve processes, to ensure productivity by understanding how people in the company communicate, and to ensure continuity or work. "An employee gets sick and you need to go in and get their work and figure out what they are doing. You are going to trip over those personal e-mails." LT Reach one of the largest legal and business markets in Canada! www.canadianlawlist.com With more than 179,000 page views and 31,000 unique visitors monthly canadianlawlist.com captures your market With contact information for more than 56,000 legal professionals, more than 20,500 law offices, judges and government departments, canadianlawlist.com attracts more than 179,000 page views a month and 31,000 unique visitors! 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