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Keep Your Stick On The Ice

Ladies and Gentlemen we are in the midst of one of the wildest NHL postseasons ever!  Intensity is at an all-time high!  So is scoring, so are penalties, so are suspensions, so are injuries, so is controversy…  In the first round playoff series between the Philadelphia Flyers and the Pittsburgh Penguins, a series eventually won by the 2012 version of the Broad Street Bullies, the two teams tallied a record 45 goals in the first four games alone.

Analysts and insiders posited that the explosion of scoring was due in part to the reckless style of play by both teams.  For example, a Pittsburgh player in his own zone would line up an opponent for a big hit against the boards, hoping to make a big impact and send a big message. He would do so at the expense of fundamentally-sound defence, and therefore give up scoring chances.  Both teams strayed from the fundamentals of playing hockey, and I can’t tell you how many penalty minutes the teams amassed in this series, because my calculator only has so many digits…  In short, they did not keep their sticks on the ice.

When someone tells you to “keep your stick on the ice” they are using an expression with two meanings: 1) remain alert and vigilant; 2) calm down and stick to the basics.

In workplace management, as in hockey, as in life, it is often wise to keep your stick on the ice.

You may have heard recently that a certain Police Service got itself into some hot water and bad press for requiring a job applicant to disclose their Facebook username and password during the recruitment process.  In response, the Ontario Human Rights Commission has published an opinion that “Employers should not ask job applicants for access to information stored on social media or other online sites and that doing so could leave an employer open to a claim of discrimination under the Code.”  A prominent and well-respected professor from York University in Toronto has publicly stated his opinion that by requiring a job applicant’s login information, and accessing their Facebook page, a prospective employer could collect information disclosing an applicant’s traits and characteristics protected by the Ontario Human Rights Code, and in the face of a complaint, would have the burden to prove that the decision not to hire was in no part based on the protected grounds of the applicant.  Of course, the Commission’s stance is an opinion, and is not conclusive or necessarily binding on the Human Rights Tribunal of Ontario.

To say the least, this is a contentious legal issue of which even the lawyers in our firm have differing points of view.  I can only speak for myself, but I understand the Commission’s opinion to state that potentially running afoul of the Code would not be due to requiring the username and password of an applicant per se, but rather actually snooping a Facebook page using the login information.  Does that mean looking at a job applicant’s open Facebook profile disclosing their religious affiliation, disability, family status, and age also violates the Code if an employer cannot establish that they did not rely on such information to reject an applicant?  I think that taken to its logical conclusion, the Human Rights Commission would seem to say, yes.  So too then would engaging in a discussion with an acquaintance of the applicant who says “my wife is good friends with Bob’s partner Jim.” Or “Bob was going to enter the NHL draft but then he permanently injured his back.”  Does an employer violate Ontario’s Human Rights Code simply by stumbling upon information regarding a protected ground in this manner?  Is an employer burdened with the onus of disproving a claim of discrimination under the Human Rights Code any time they become innocently informed of an applicant’s protected characteristic?  I think not, and as a lawyer, I would be interested to see the Facebook login issue argued in front of the Human Rights Tribunal.

But I highly doubt that the issue will reach that point.  Why?  Because employers should know to keep their sticks on the ice!  For most employers, requiring an applicant to disclose their Facebook login information so you can snoop them out before (or even after) hiring strays so far from the basic principles of safe hiring practices, that it is the human resources equivalent of lining up your opponent for a big hit in your own zone, at the expense of fundamental defence.  It’s a battle you could potentially win, but weigh the potential benefits against the potential costs and you’ll see it’s just a bad idea.  High risk, low reward.

Keep your stick on the ice!

If I’m right and requiring a job applicant to disclose their username and password is not, strictly speaking, a violation of human rights law, it would still likely constitute a breach of privacy law that could result in a complaint to the federal or provincial Privacy Commissioner, or at least make the employer seem intrusive and overbearing.  There are other, less risky means by which an employer can keep its stick on the ice and still achieve the same goal of ensuring they are hiring an acceptable candidate.

Employers ought to be aware that they can safely comply with Human Rights legislation by carrying out their accessible and fair hiring process, extend an offer of employment to the suitable candidate, and in appropriate circumstances make the offer of employment conditional on such further terms as receipt of references, background checks, or medical clearance for a physically demanding job, etc.

So when your company is hiring, keep your stick on the ice.  Be guided by proper hiring practices, respect your applicants, and when in doubt, talk to your lawyer before taking unnecessary risks.

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