By Stuart Rudner
In my Canadian HR Law Group on LinkedIn, a member recently posted this inquiry:
"We have just hired a new employee who is performing well after one month, but his former employer has informed us that they were investigating him for theft before he resigned."
The poster inquired about dismissing the individual, on a without cause basis. Interestingly, the post generated a substantial response — with more than 35 comments in a little more than one week. Many comments were made regarding the fact the comments from the former employer should be taken with a grain of salt, since they referred to an investigation — not a conviction — and since this former employer may have reason to be disingenuous. Others noted the facts suggest a failure to carry out a proper reference check before hiring.
Kellie Auld, a respected workplace investigator and employment relationship specialist (and frequent commentator) participated in the online discussion and offered some comments when I mentioned this blog post. As she said:
"So much of what we do as HR practitioners has to do with how we enter into our employment agreements. Before we enter into agreements, I think we need to do our due diligence — check out references, do criminal record checks, driving extracts, credit checks, bona fide occupational requirements and written offer letters that talk about probationary periods and so on.
"If you do have requirements for criminal record checks (or others) be sure that your policies speak to that as well so you are delivering the same rules to everyone. Identify positions for which these checks are needed — vet your letters and policies by a lawyer. One thing I think I learned well when I was in HR was to be consistent in my practices. I know managers can tend to panic when they want a position filled (well, we all do, I suppose) but the extra day or two it takes to go through processes in a fair and consistent way will save so much grief down the road that I don’t think can be overstated."
As Kellie suggests, proper, consistent hiring practices are critical. Issues such as this can raise both human rights concerns, since it can be a breach of human rights legislation to discriminate against someone based upon a “record of offences,” as well as privacy concerns.
There are two separate issues to be considered. The first is whether the employer can require information such as criminal records. The second is whether the results of such a check can be relied upon in the hiring decision.
Many organizations require that every applicant, for every position, submit to background checks including disclosure of their criminal records. This raises significant privacy concerns and should only be required where there is a bona fide occupational requirement. Otherwise, there is no way to defend a such a blanket policy. Just because someone committed a crime does not mean that they should never be offered employment.
Even where a criminal record check is appropriate, choosing not to hire someone based, even in part, on conviction of an offence for which they were pardoned can trigger a human rights violation. Similarly, provincial offences such as Highway Traffic Act matters cannot be the basis for a decision not to hire, unless there is a bona fide occupational requirement — for example, an applicant for a school bus driver position with a significant history of driving offences.
As a bottom line, I discourage employers from automatically requiring extensive background and criminal checks for every position. They should be used where appropriate, and with the required consent. However, employers should always do proper reference checks. It is always easier to decline to hire someone than it is to “unhire” them.