Monday, March 26, 2012

Facebook and Employment Law

I read a Toronto Star article today about employers looking for information on Facebook. The article appears here

The fact is that in a number of scenarios Canadian law does protect your right not to have your Facebook profile reviewed. There are a lot of important caveats to that statement. I will give two examples.

EXAMPLE 1: You have a job interview and the employer asks to see your Facebook profile. There are any number of technicalities whereby you could opt not to provide it. For example, you could say that you did not want the employer seeing your marital status, at which point it might become a human rights issue if the employer continues to press you.

You have to examine the context of this hypothetical, however. Most likely you are in the job interview because you want the job. It seems unlikely to me that you will get a job when you are not cooperative with the employer. If this is the result of your refusal to show them your Facebook page based on a human rights issue it is certainly out of line, but proving that would likely be extremely difficult. As a result, you might have rights but they are unenforceable and therefore of no value to you. Meanwhile, there may be nothing on your Facebook page worth hiding.

EXAMPLE 2: You have been working for ten years for a company, one day your managers demand to see your Facebook profile because they are trying to ensure that no employees have pictures which would be contrary to business interests. You have some pictures from your younger years which you think might cause a problem.

In this situation, if you refuse you are more protected than the employee in EXAMPLE 1. There is a good argument that the employer cannot suddenly state that your Facebook profile matters when it was irrelevant to them for all ten years of your employment. If terminated in this scenario you might be entitled to a generous severance payment. Moreover, you must evaluate the risk that your employer would fire you over such a thing after ten years' service.

In both scenarios you have the same rights. Ascertaining your rights is often only a small part of the answer you seek. I always encourage my clients to tell me the result they hope for, and then try to help them toward that result. Rights are part of the analysis, but at the end of the day my job is to put my clients in the best possible position accounting for what it is they hope to achieve.

By focusing on working within the legal framework to achieve optimal results, TevlinGleadle remains the foremost employment law firm in Vancouver.

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