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The employment world is continually evolving in order to stay current with changing technology. From interactions between colleagues at work to employment relationships generally, this evolution will only continue to expand into the future. However, with new technology come new problems. This is just as true for LinkedIn, as it was, and continues to be, with Facebook.

LinkedIn is another social networking site, although geared at those professionals seeking employment, a new hire, or simply to expand their professional network. The fact that many people will use LinkedIn to facilitate their career advancement on the one hand, or to confirm qualifications and achievements presented by potential candidates on the other, means that there will inevitably be the emergence of an information tug of war between these parties. For this reason, former employees and employers, and those in search of new employees, will need to be prudent during their online dealings.

Recently, there have been new reasons to be concerned with the use of LinkedIn. From a job search perspective, those who are seeking employment will benefit from populating their own profiles with as much relevant employment history information as possible and from expanding their connections through “links”. However, from a privacy perspective, this leaves those job seekers vulnerable to being exploited by former colleagues and employers. For example, problems have been surfacing with those who subscribe to LinkedIn’s “Premium” service. That is, employers have been using LinkedIn to target references for job seekers without their permission by using the “Reference Search” function, whereby a potential employer will have access to a list of individuals or companies, who already form part of their own network, who have worked with a potential hire. These potential employers will then reach out to these former colleagues and question them about the candidate they are considering hiring.

Not only are the potential candidates not providing their consent to have their former colleagues contacted, but this could lead to unfair and inaccurate information being provided, especially from those who never worked closely with the candidate. Nevertheless, the biggest concern would remain with their former employers, who may be tempted to divulge some personal information about their former employee without that former employee’s consent, or even provide something other than a positive or neutral reference, which could again open the door to potential liability. We have to remember that a LinkedIn “link” between two people does not equate with consent to have this link speak to a potential employer. It is simply that – a link.

Lately, there have been numerous articles touching on the concerns arising from the use of LinkedIn for those seeking employment. In the United States, at least one case, a proposed class action lawsuit, has arisen based on hampered job searches by LinkedIn’s “Reference Search” feature. Also, as LinkedIn continues to grow, it is inevitable that a user’s privacy concerns will start to be addressed by courts and tribunals in Canada, as has occurred with Facebook.

According to the Office of the Privacy Commissioner of Canada’s website, the conduct of individuals who are not collecting, using or disclosing personal information for commercial purposes is, generally speaking, not covered under Canadian privacy laws. Whether what these employers are doing is related to a “commercial activity” is certainly arguable. In any event, be it through Canada’s privacy legislation, or by way of the new tort of intrusion upon seclusion, confirmed in the 2012 Ontario Court of Appeal case of Jones v. Tsige, LinkedIn’s features will certainly come under court scrutiny in the near future.

In the words of Arbitrator Surdykowski:

“[…] Canadians tend to react instinctively against attempts to invade their privacy. This instinctive reaction is born of a free and democratic society. In our society individuals are free to give up privacy rights, and modern technology (such as Facebook) entices many (perhaps unthinkingly) to do so. However, they are equally free to resist attempts to invade their privacy, regardless of the professed intentions of the invader.1

For the moment, there appear to be many shortcomings when it comes to one’s privacy rights through the use of LinkedIn, even if profiles are self-created. Still, a former employer should be weary of potential claims or complaints against them should they divulge any information about a former employee without that person’s consent.

1Mechanical Contractors Association Sarnia v United Association of Journeymen and Apprentices Of The Plumbing & Pipefitting Industry of the United States and Canada, Local 663, 2013 CanLII 54951 (ON LA) at para 136.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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