Employer access to your Facebook: how lawful are such requests??

Readers have no doubt seen the reports that a number of potential employers seem to be asking potential employees for access to their Facebook pages. Prof David Doorey in his blog on Canadian workplace law has pointed out that such requests may prove something of a legal minefield for employers. David's argument is relevant to New Zealand as well, he essentially argues that such requests will probably fall foul of anti-discrimination law as indicating an intention to discriminate.

In the New Zealand context section 23 of the Human Rights Act provides that:

It shall be unlawful for any person to use or circulate any form of application for employment or to make any inquiry of or about any applicant for employment which indicates, or could reasonably be understood as indicating, an intention to commit a breach of section 22 of this Act [s 22 provides that it is unlawful to refuse or omit to employee an applicant by reason of the prohibited grounds of discrimination]

Most employers are by now well aware they should not ask question about such matters as age, family status, sexual orientation and so on - asking for access to Facebook is essentially a request for such information.

Account might also need to be taken of the privacy principles set out in the Privacy Act. Principle 1 requires that the information be necessary and principle 4 that the means of obtaining the information "must not intrude to an unreasonable extent upon the personal affairs of the individual concerned."

Modern employers seem only to ready to pry into all aspects of the lives of their employees-this might at least inhibit one form of intrusion.

Lord Wedderburn of Charlton: born 13 April 1927; died 9 March 2012

Lord Wedderburn, one of the great British labour law academics, has died aged 84.  Bill Wedderburn would have been well known to all labour lawyers. His work was immensely infuential particularly for those of us who were educated in labour law in the first decade or so when the subject was first formally recognised and taught in law schools.  His book, The Worker and the Law (1965), was a classic of labour law scholarship and one of the foundational texts of the subject. Bill's contribution was not only academic, at a level that most of us can only dream of achieving, but he also made major political and practical contributions to labour law. As with all the greatest labour lawyers his work reflected a strong sense of social justice.

Bill's achievements are best described by others but on a personal note I would mention that I met Bill several times. He was always hospitable and welcoming and prepared to assist to open the odd doorway in Britain.

A full obituary may be read at The Guardian

I've Been Publishing

A must have item for those interested in New Zealand labour and employment law  Reconstructing New Zealand's Labour Law: Consensus or Divergence has been recently published.  It can be purchased from Victoria University Press

New Zealand’s first labour law system, the conciliation and arbitration system was a stable and balanced model that served New Zealand well for most of the twentieth century.  However from the mid-1960s this system slowly collapsed under the weight of political and economic pressures.  In 1991, after a two decades of attempted reform, a new era in labour law was heralded by the Employment Contracts Act 1991.  This Act, strongly influenced by neo-liberal ideology, was unashamedly anti-union and anti-pluralist.  It was intended to deunionise workplaces and replace the arbitration system’s pluralist ethos with the individualised and subordinate employment relationship common law.  A decade later these reforms were in turn modified by the Employment Relations Act 2000 which attempted a return to a more pluralist legal  model centred on a statutory duty of good faith applicable to both individual and collective employment relationships.  A little more than a decade later,

including one term of National government, there appears to be at least some consensus on the broad structure of labour law and therefore a new period of labour law stability may have developed.

The first part of this book traces the evolution of New Zealand labour law from colonisation to the present day and in particular the turbulent period between 1970 and 2000 when our contemporary system of labour law developed.  In the second part it describes that system of law and asks whether a new consensus has developed or whether there is merely a lull before a new storm.