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On April 23, 2012, Nova Scotia Liberal MLA Andrew Younger
introduced Bill 40, which would amend the Labour
Standards Code (Nova Scotia) to prohibit an employer from
requiring an employee or prospective employee to provide access to
the employee or job candidate's social networking account or
discriminating against the employee or job candidate for refusing
to provide such access. The Nova Scotia NDP government is reported to be
considering the Bill.
If the Bill were to pass, it would be the first legislation to
pass in Canada specifically addressing the practice of employers
requiring employees or job candidates to provide access to social
networking accounts. Last week, Maryland became the first state in
the United States to pass legislation prohibiting an employer from
requesting or requiring that an employee or job candidate disclose
passwords (among other things) for accessing personal accounts or
social networking services and disciplining any employee who
refused to release such information. The bill has not yet been
signed into law. California Senate Bill 1349 would go further and prohibit a
post-secondary institution or an employer from requiring a student,
employee or prospective student or employee, to provide access to
that persona's personal social media account.
It is questionable whether such specific legislation is required
in Canada. In a recent post on Employment and Labour Law, my colleague, Naomi
Horrox, wrote about the practice of accessing personal information
about job candidates by asking candidates for their passwords to
social networking sites that they use. Naomi reported in her
article that the Ontario Human Rights commission warned that doing
so could lead to claims against the employer of discrimination
allegations.
In addition, any employer who seeks access to social networking
sites should obtain legal advice regarding Canadian privacy
obligations as the employer who logs on as the job candidate will
have access to and may be accessing and collecting personal
information about third parties (the candidate's contacts) by
reviewing and copying any information on the site. Employers should
seek legal advice regarding whether such access and collection
might be contrary to the third parties' reasonable expectations
and whether consent of those third parties is required in the
circumstances, depending on the third parties' privacy
settings.
About Fraser Milner Casgrain LLP (FMC)
FMC is one of Canada's leading business and litigation law
firms with more than 500 lawyers in six full-service offices
located in the country's key business centres. We focus on
providing outstanding service and value to our clients, and we
strive to excel as a workplace of choice for our people. Regardless
of where you choose to do business in Canada, our strong team of
professionals possess knowledge and expertise on regional, national
and cross-border matters. FMC's well-earned reputation for
consistently delivering the highest quality legal services and
counsel to our clients is complemented by an ongoing commitment to
diversity and inclusion to broaden our insight and perspective on
our clients' needs. Visit:
www.fmc-law.com
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