The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.

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The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.

For full contact information and a brief bio, please see David's profile.

Please note that I am only able to provide legal advice to clients. I am not able to provide free legal advice. Any unsolicited information sent to David Fraser cannot be considered to be solicitor-client privileged.

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The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.

This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.

Thursday, June 10, 2004

Privacy and Employee References 

The Globe and Mail newspaper has a column in which readers can send in their questions. This week's edition includes a question about checking references:

The Globe and Mail:

"Dear Susan,

Can a recruiter or potential employer contact a reference without your permission?


Dear MYOB,

Employers can and do, but they shouldn't. "I heard it through the grapevine" is still the anthem of talent scouts in certain sectors, recent privacy legislation notwithstanding. But asking for the straight dope without consent is risky. Not only does the practice breach ethical and legal boundaries about personal privacy, the information gleaned this way is hardly reliable. An opinion about an employee says more about the referee than the worker, according to reams of studies, and thus off-the-record telephone exchanges are becoming less common in reputable human resources circles. Without the employee's nod even something as basic as checking where a candidate is currently employed can jeopardize her career if her boss doesn't know she's looking around. So seeking the low-down behind an employee's back is bad form, possibly illegal and not exactly how you welcome a new recruit into the fold. The whole practice smells.

So what if it already happened? I'm no lawyer, but a cursory look at the federal privacy law, the Personal Information Protection and Electronic Documents Act (PIPEDA), and the three provinces that have their own privacy legislation (Quebec, Alberta and British Columbia) shows that most explicitly discourage employers from disclosing information without the employee's okay. Alberta is one exception, allowing employers to collect personal information about public employees "from any party without specific consent," according to a human resources guide published on the provincial government's Freedom of Information and Privacy website and confirmed by one of the government's information officers.

But all it takes is one test case to make Canadian employers clam up forever, says Vic Catano, a psychology professor and recruitment expert at St. Mary's University. That's what happened in the United States, when a referee not authorized by a candidate gave a negative point of view that off-sided an applicant for a vacant position. The employee sued and was awarded damages, an event that cast a pall on the reference-giving world. Even if a candidate has given permission, information not germane to the job is off-limits. It's irrelevant if you curl with the candidate's father. Just the facts, ma'am. Except for checking biographical facts with the candidate's permission, when it comes to references the rule is don't ask, don't tell. "

Getting consent is always a good idea. PIPEDA only applies to employees in the federally regulated private sector (banks, airlines, etc.), but employees (potential and otherwise) are beginning to expect that employers will respect their privacy. I advise my clients to have the prospective employee sign a consent at the interview, giving permission to contact anyone who may have information that is relevant, not just their listed references. Of course, their sunday school teacher will say good things about them. The key is to get relevant information. The consent form also has to say that the individual gives consent for the disclosure of personal information from the person who is asked. Referees are well advised to insist on seeing such a consent.

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6/10/2004 07:57:00 AM  :: (1 comments)  ::  Backlinks
I attended an interview as an instructor at a private college recently. As this is a relatively small town, it turned out the manager interviewing me had been up for the same community service award in the previous year and had attended the same awards banquet. We shared other similar spotlight activities at the same time with the same groups. Things were going well. She said "based on what I know of you from the work you've done in this community, I"m prepared to offer you the job". No references were asked for, no reference check policy was described to me, but just as a sign of goodwill (already having been given the job) I gave her three references who I knew were strong advocates of mine. I went away on courses to Toronto for 10 days and when I got off the plane on the Friday, ready to start work for her the following MOnday, there was amessage saying that I was not hireable due to an extremely poor reference check. I knew there was absolutely no way I would have a poor reference from any of these three rather high profile people in the business, medical and teaching community. I followed up with all of them; only one had been contacted and when the two of them spoke, my reference gave a glowing report of me however my now-ex-employer indicated I was not the successful candidate for this position. The other two references were not even checked. So either this woman is lying through her teeth, or she checked with someone I didn't give consent for her to check with.
Is this legal? I feel rather violated.
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