Twenty years ago, a really entertaining movie came out called “Catch Me if You Can”, which featured Leonardo DiCaprio as a con artist who found work as a doctor, lawyer, and pilot by forging his credentials.
That film highlighted how far charm and confidence can get someone in the hiring process. Recently, we had our own version in British Columbia where a woman worked as a nurse at a hospital and private clinic for almost a year, despite lacking nursing credentials.
What we now know is that after being convicted on similar fraud charges in Alberta in 2011, the “fake nurse” submitted several letters of personal reference during her sentencing hearing, in order to plead for leniency – all of which were forged.
This case and others like it raise questions about the extent to which employers can go beyond the usual reference checks when vetting applicants. While there are ways in which an employer can gather extra information on applicants, they should be aware of the risks inherent in conducting these enhanced checks, and of the need to formulate policies that minimize these risks.
While it may seem tempting to conduct internet searches on applicants, employers should be aware that provincial and Federal privacy legislation strictly regulates when, and to what extent, they can collect, use, and disclose information on an applicant, and that this legislation applies to internet searches.
The applicable federal legislation is the Personal Information Protection and Electronic Documents Act, while at the provincial level, British Columbia and Alberta each have their own legislation, both named the Personal Information Protection Act.
All three pieces of legislation are built upon the principle of consent. Before collecting, using, or disclosing any personal information relating to an applicant, except in limited circumstances, an employer must obtain that applicant’s consent.
Even when an employer has obtained consent to collect, use, and disclose personal information, the legislation imposes limitations on the extent to which they may do so. Specifically, an employer may only collect, use, and disclose that information for reasonable purposes. In a hiring process, it would be limited to information which is necessary to assess a candidate for the particular position.
Internet searches pose a particular challenge to employers, since it is difficult to control the information they come across. Under privacy law, merely viewing information, even without saving it, is considered to be “collecting” that information. In the course of searching for relevant information, an employer may inadvertently breach the legislation by viewing, and thus collecting, irrelevant information. Gathering some of that irrelevant information may put the employer in jeopardy of appearing to judge a candidate on a discriminatory basis contrary to human rights legislation.
If an applicant believes that an employer has conducted unlawful searches of personal information, they may advance a claim or complaint in civil court, in a human rights tribunal, or to a privacy regulator, depending on the nature of the claim.
Employers wishing to conduct internet checks should draft a formal policy outlining how the checks are to be conducted and how the information collected is to be safeguarded and eventually destroyed, in order to ensure that they comply with the applicable privacy legislation.
An employer generally does not need to seek an applicant’s permission to verify basic details about the reference an applicant has listed, such as their position or their phone number, as business information like this is not considered “personal information” for the purposes of the legislation. It is, in fact, advisable to verify reference contact details. Do the numbers and email addresses line up as provided by the applicant?
Business contact information is not “personal information.” Therefore, searching for confirmation of the details for the referee would be permissible under the applicable legislation.
However, as contacting a listed reference will necessarily result in the disclosure of personal information about the applicant, an employer should obtain their consent to contact their references, even if the applicant has listed the references in their application.
If an applicant purports to be accredited by a professional organization, an employer should consider taking steps to verify this claim.
Many licensing bodies provide publicly searchable databases of their licensees. As most professional organizations issue personalized ID numbers to their members, to conduct further authentication, an employer may consider requesting an ID number from the applicant, and confirming that number with the relevant organization.
Further, many professional organizations maintain lists of non-accredited practitioners that are known to them. Finding an applicant’s name on such a list can indicate that they are possibly misrepresenting their credentials, and that further steps should be taken to assess their qualifications.
B.C.’s fake nurse had warnings issued about her from the nursing associations in Alberta and Ontario as far back as 2010. However, she used pseudonyms and forged documents, including the names of real nurses, to try and get around this. It would have seemed reasonable for a potential employer to verify the name of the nurse in the registry and accordingly assume everything was as it should be. This is why seeking the ID number and confirming the identity of the applicant may be important.
Employers can be held liable for the wrongful conduct of their employees. It is important that they ensure applicants possess the skills and experience necessary to do the job properly. In some cases, this may require an employer to go beyond the usual reference checks.
However, given the privacy and human rights risks inherent in conducting these pre-employment checks, employers should be mindful of their duty to act in good faith, and should consult with counsel before taking any steps outside their usual vetting process.
 British Columbia, Office of the Information & Privacy Commissioner, Conducting Social Media Background Checks, (Victoria: 2017)
Ritu is a member of our Labour, Employment and Human Rights Group. She is a former Vice Chair of the BC Labour Relations Board. As an experienced adjudicator, Ritu offers our clients a unique perspective on labour and employment law ...
Daniel is an associate in the Calgary office of Lawson Lundell. His practice focuses on corporate commercial litigation. Daniel has experience in a wide variety of matters, ranging from disputes before human rights tribunals to ...
Lawson Lundell's Labour and Employment Law Blog provides updates on the most recent legal developments impacting the Canadian workplace and offers practical tips for employers. We cover a range of topics, including labour relations, employment law, collective bargaining, human rights, employment standards, employment equity, workers' compensation, business immigration, privacy, occupational health and safety and pensions and employee benefits.
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