I’ve done several posts lately on the question of whether an employer can demand job applicants provide their passwords to Facebook. My take was that it would be a violation of the Ontario Human Rights Code
for an employer in this province to do that, because the Code prohibits questions in a job interview that directly or indirectly classify people by a prohibited ground. In practice, that section has been interpreted so as to prohibit employers from asking questions that would put information about a prohibited ground into the employers’ hands. If you had all your personal information (like marital status, sexual orientation, number of children, disability, religion) written on a piece of paper that was locked in your car’s glove compartment, could an employer demand access to your car?
I say not. Afterwards, the Human Rights Commission issued a statement warning employers that asking for Facebook passwords “could leave an employer open to a claim of discrimination under the Code”.
Some employer-side lawyers disagreed with my interpretation of the Code, suggesting that there is nothing unlawful about asking for access to a personal website, so long as the employer does not rely on any information about prohibited grounds they find there. I disagree with that view, because the Code already prohibits employers from acting on information about prohibited grounds (Section 5). The sections dealing with inquiries during the recruitment stage are not regulating the use of information obtained, they are regulating the collection of the information in the first place by prohibiting employers from asking certain questions.
But I think everyone agrees on one point. The government’s position on this issue could be much clearer in order to give direction to employers and employees alike. In my earlier post, I suggested that the Ontario government (or perhaps the NDP in a private members’ bill) could clarify the issue by introducing a law expressly banning employers from demanding applicants or employees provide access to personal websites. That hasn’t happened yet, but they are moving that way in the U.S.
Maryland has just introduced legislation banning employers form asking for passwords to a job applicant’s non-public internet, social media pages (including Facebook, Twitter, LinkedIn, etc). Maryland is the first state to do so. Here is the media story. The actual legislation is found here. It comes into effect in October. The key charging section reads as follows:
AN EMPLOYER MAY NOT REQUEST OR REQUIRE THAT AN EMPLOYEE OR APPLICANT DISCLOSE ANY USER NAME, PASSWORD, OR OTHER MEANS FOR ACCESSING A PERSONAL ACCOUNT OR SERVICE THROUGH AN ELECTRONIC COMMUNICATIONS
An employer violates the legislation if it refuses to hire an applicant “as a result” of the applicant’s failure to provide the information. Of course, that might be hard to prove, but it does signal clearly that it is illegal to ask, and most employers would be expected to obey that. It is not clear to me what the penalty is for non-compliance.
What do you think? Should Canadian governments follow Maryland’s lead and expressly prohibit employers from asking for electronic passwords?
Or do you think employers should be able to do this, since the information obtained from personal websites gives employers a fuller picture of a job applicant’s potential?