B.C.’s Personal Information Protection Act compels employers to protect the privacy of employees.
The hiring process is one period when the employer’s collection, use, and disclosure of employees’ personal information is most prevalent.
Fortunately, B.C.’s Privacy Commissioner has published a series of guidelines for employers to follow during the hiring process. This is a good thing for employers, because B.C.’s Act can be indecipherable.
The guidelines first address the question of what to do with unsolicited resumes. The simplest solution is to dispose of them.
The Privacy Commissioner recommends taking reasonable care when disposing of resumes, preferably shredding paper copies and deleting electronic copies.
If employers keep unsolicited resumes on file, the personal protection requirements contained in the Act are triggered.
The employer must protect the personal information contained in the resume.
It would also have to respond to the individual’s enquiries about how his or her information has been used, stored, and disclosed.
The guidelines then go on to address the issue of information requests by the employer during the hiring process.
In my experience, the question of, “What can I, and what can’t I, request from applicants?” is one many human resources staff find themselves asking.
For the purposes of the Act, the employer may request any information that is reasonably relevant to the hiring process.
The guidelines indicate that may include such information as qualifications, experience, knowledge, skills and abilities.
The applicant’s consent for the employer’s collection of such information is implied.
If the employer requires personal information for a purpose other than assessing suitability and establishing the employment relationship, it must tell the applicant he or she is free to refuse to disclose the requested information.
The applicant’s refusal should have no impact on the employer’s subsequent hiring decision.
Generally speaking, regardless of whether consent has been given, the employer’s collection of personal information in the hiring process must be reasonable.
That is to say, reasonable for the purpose of determining the applicant’s suitability for employment.
Whether or not a request is reasonable will always depend on the context of the particular job vacancy.
And, it is worth noting that there are other factors, such as the B.C. Human Rights Code, significantly influencing the propriety of requests for information at the time of hiring.
The guidelines also provide direction relating to reference checks, stating that an applicant who has provided references has implicitly consented to your contacting those references.
Again, however, the implicit consent only allows the employer to collect information which is relevant to its job requirements.
Similarly, by asking a person to provide a reference to the prospective employer, the applicant implicitly consents to that person’s disclosure of personal information.
If the employer conducts a background check or contacts other former employers for references, it should first notify the applicant of its intentions.
The employer should also direct the applicant to provide consent for others to disclose personal information.
This can be done by having the applicant provide a written consent for such information to be disclosed to the prospective employer.
The employer must, of course, ensure that information obtained from the applicant’s references remains confidential.
Keep in mind, however, that individuals now have a statutory right to access their own personal information.
So, employers should assume that any references they collect will be accessible at some point by the applicant.
The guidelines go on to explain that personal information gathered during the hiring process can only be used for purposes other than hiring if those purposes would have been obvious to a reasonable person and if the applicant voluntarily provided the information.
Otherwise, the applicant should be told the other purpose and his or her consent obtained.
This might occur, for instance, if the recipient of a resume were planning on sharing resumes with other prospective employers.
Personal information collected during the hiring process must also be kept secure.
This means taking precautions to ensure the information is not put to improper use by staff or other persons.
The more sensitive the information, the greater the protection it requires.
The employer must retain the information for at least one year.
Employers should educate themselves on when personal information should, and should not, be disclosed.
They should ensure the information they are holding is accurate and complete. They must respond to requests by the individual for access to his or her information and for corrections of inaccuracies.
Following these guidelines will ensure that the hiring process, as well as the employment relationship, gets off on the right foot.
B.C.’s Privacy Commissioner has also recently published guidelines on conducting background checks by accessing social media sites, and I’ll summarize those next week.
Robert Smithson is a labour and employment lawyer, and operates Smithson Employment Law in Kelowna. This subject matter is provided for general informational purposes only and is not intended as legal advice.