It is common in the workplace for employees to decide that they wish to leave their current role when a new opportunity arises with a different employer. Employees may wish to move because they want to grow and move up the ranks, want a fresh start, or simply receive a better offer. When a situation like this arises, it is important for employees and employers alike to know the applicable privacy law.
The privacy legislation applicable to private businesses in British Columbia is the Personal Information Protection Act (“PIPA”). While there is similar legislation governing public bodies, we will discuss PIPA in this piece as it applies to most organizations in BC.
PIPA bars employers from collecting, using and disclosing personal information without the consent of the individual. Personal information means information about an identifiable individual and some examples of personal information include:
Name, sex, age, weight, height;
Home address and phone number;
Race, ethnic origin, sexual orientation;
Income, purchases and spending habits;
Blood type, DNA code, fingerprints;
Marital or family status;
Importantly for our purposes, employment information. Employee personal information includes the type of records collected, used, or disclosed for the purposes of establishing, managing, and terminating an employment relationship. It generally includes things such as personnel records, job applications, performance evaluations, and letters of resignation or termination.
It is important to understand that personal information can be disclosed by an employer if the employee or prospective employee consents. This means if an applicant provides a prospective employer with references, that applicant is consenting to the prospective employer contacting those references and disclosing that the applicant has applied for a new position with the prospective employer.
While PIPA does legally protect your right to privacy during a job search, in practice this is not always the case. Employers who are not aware of their privacy obligations or are willfully blind about them may disclose to an employee’s current employer, advertently or inadvertently, that the employee is applying for new work.
In the event that an employee or prospective employee feels that their privacy has been breached and personal information has been disclosed to a third party, employees may file a complaint with the Office of the Information and Privacy Commissioner for British Columbia (“OIPC”). British Columbia also has a Privacy Act, which forms a statutory tort of invasion of privacy. Individuals can bring an action on the basis that another party has willfully violated their privacy without a claim of right.
Here are our four key tips to ensure that your job search remains confidential:
1. The old saying “loose lips sink ships” applies well here. Be cautious about telling your peers or colleagues that you are seeking new employment. News spreads quickly news in our increasingly social (media) world with Facebook, LinkedIn, Twitter, and Instagram.
2. An employee should indicate on their cover letter and resume that they are applying to the new job in confidence. If an employee indicates that they are applying confidentially, this puts the prospective employer on high alert that they should approach the interview process sensitively and with mind to an applicant’s privacy.
3. Employees should continue to give 100% at their current job. While it easy to get caught up in the excitement of interacting with new employers and considering the prospect of a fresh start, an applicant does not want to put their current employer on alert that something could be up. The applicant wants to be as respectful as possible and preserve relationships, giving the proper notice of termination as set out in their contract, if applicable.
4. Use good judgment when providing references. Remember, if an employee provides references to a new employer, the employee is consenting to that employer contacting the employee’s references and revealing that the employee has applied for a new position. The employee should trust the references they provide to keep their application for new work confidential.
If you feel that your privacy has been violated during a job search or your personal information has been disclosed illegally by an employer to a third party, please contact us at Ascent Employment Law so we can discuss your options with you further.