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Nova Scotia Considers Legislative Action to Prevent Employers from Requesting Social Networking Passwords

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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.

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