Under investigation? Hand over your Facebook log in

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Social media and the fast, public communication it enables can cause any number of headaches for HR – from employee’s badmouthing the company, to serious harassment issues. But would accessing a worker’s social media account be of any help?

A proposed bill in Washington state would allow an employer conducting an investigation to require or demand access to an employee’s personal account, if an employee or prospective employee has allegations of work-place misconduct or giving away an employer's proprietary information.

It was unlikely that similar legislation would come to Canada, according to Filion Wakely Thorup Angeletti associate Deborah Hudson. There were few legal situations where it would seem necessary, and once an issue became a criminal matter there were other channels to access private information.

“The only scenario I could see it being necessary is if it’s a serious criminal concern and they’re concerned about someone’s safety, but in that case it should be a police matter,” Hudson said.

The Washington amendment would require an investigation to ensure compliance with applicable laws or regulatory requirements, and employees would be present when their social network profiles are searched and whatever information found is kept confidential, unless it is relevant to a criminal investigation.

Workplace investigator Dean Benard had been involved in cases where information from social media was important, and said having more information was never a bad thing for investigations.

“While it may not be necessary in every investigation, I can certainly envision investigations where having access to that kind of information could be helpful,” Benard said. “As an investigator I would never say we don’t want access, it’s up to the investigator to judge when it’s appropriate and relevant to gather that information. Having access to that sort of information shouldn’t be abused.”

As it is, Canadian employers can ask for access, but cannot demand employees provide that information.

“If they consent then there’s no problem as long as that consent wasn’t coerced or compelled. Often ask for access to information. The scenarios I can envision would most often be situations where they don’t want to share that information,” Benard said. “Having the ability to legally and properly access information would be something investigators would welcome.”

However, accessing an employees could cause an employer more problems than it solved, Hudson said.

“There could be potential human rights issues with asking for the login because you might be able to ascertain someone’s age, religion, sexual orientation, disability. If the company makes a decision based on any of that information they could have a human rights issue.”

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