Border guards asked to declare drug use, unlawful sexual activity

Voluntary ‘integrity survey’ raises privacy, discrimination concerns
By Amanda Silliker
|Canadian HR Reporter|Last Updated: 11/06/2012

The Canadian Border Services Agency (CBSA) is asking employees if they have ever used a fake ID, solicited sex from a prostitute, been dependent on antidepressants and how much alcohol they drink per week.

These questions are part of an “integrity questionnaire” CBSA posted to its website in September. The questionnaire asks current employees and new recruits to voluntarily respond to 57 questions touching on everything from driving history, alcohol and drug use, and gambling (including scratch tickets) to computer hacking and involvement with law enforcement — including if they have ever done anything they could have been arrested for but were not.

“It’s shocking, obviously,” said Jean-Pierre Fortin, national president of the Customs and Immigration Union in Ottawa, which represents 11,200 workers. “We were certainly surprised at how in-depth it was going. We feel it is way too much intrusive into our personal life.”

The intent of the integrity questionnaire is to “measure the applicant’s honesty, trustworthiness, integrity and reliability, which are not adequately assessed through current hiring and security screening programs,” said CBSA.

The questionnaire is part of a High Integrity Personnel Security Screening Standard (HIPSSS) put in place by CBSA in June, which includes four other security-related measures, such as an integrity interview and psychological ethical testing (both for cause). The standard involves five phases to be rolled out over the next five years.

The purpose of the standard is to minimize security risks, protect program integrity and align the agency’s personnel security screening more closely with CBSA law enforcement partners “in recognition of the unique authority that CBSA employees have to move people and goods across the border,” said Luc Nadon, a spokesperson for CBSA in Ottawa.

“Employees of the CBSA must conduct themselves with integrity, respect and professionalism,” said the agency. “It is imperative, therefore, that the CBSA carefully assess the integrity of new applicants and current employees.”

Other law enforcement agencies have similar questionnaires in place, so it’s not surprising the CBSA would want to follow in their footsteps, said Sharon Polsky, director of the Rocky Mountain Civil Liberties Association in Calgary.

“It’s a different life in law enforcement and I can understand the rationale,” she said. “In the wake of scandals and allegations and international influence and wanting to make sure people are not corruptible, I can see that someone would want to implement this sort of measure.”

But the survey may not necessarily give any indication of who that person is and what she might do as an employee, said Dorian Persaud, an employment lawyer in Toronto.

“Employers have to consider the fact that yes, past behaviour is indicative of what an individual might do in the future. However, that isn’t foolproof and employers have to keep in mind, ‘Do good people make poor decisions in life and can a good person make a wrong turn?’ Of course they can,” he said.

There is also concern over how the answers will be interpreted, said Fortin.

“Who are they, CBSA, to decide if I’m fit or not for that job depending on what I’m taking for medication? Or what’s your habit of drinking? Would four beers a week be their limit? Are they going to have parameters?”

There should be a very clear distinction between the personal lives and working lives of employees, he said.

“What about if you’re going through a rough time in your personal life and you need some antidepressants? Does that mean you’re not fit and does the employer need to know that? It gives them a lot of space to provide their own interpretation and their own spin on your habits of life.”

The union is encouraging members not to fill out the questionnaire until it hears back from its legal counsel, said Fortin. It will be discussing the questionnaire with the privacy commissioner and also looking into whether it contravenes any aspect of human rights legislation, he said.

From a legal perspective, there is nothing that prevents employers from asking these types of questions, said Persaud. But employers need to be careful their questions do not elicit information around protected grounds — such as age, family status or disability — that can lead to potential discrimination.

“You always have to be careful that in asking questions, you’re not directly or indirectly getting information from an individual that relates to one of these grounds because you then open the door for the candidate to say, ‘You didn’t hire me because of this information that you collected,’” he said.

For example, if an employer asks questions around drug use, that can indirectly divulge medical information about someone who may have a disability, said Persaud.

Another question in the survey asks if a candidate has ever had her driver’s licence suspended and provides space for an explanation — which is where the CBSA could obtain too much information.

“Maybe they were prone to having seizures in the past but they’re currently on medication and have their licence back. You now have, through an innocent question, been given medical information and if you don’t hire the candidate, they may contest the fact you didn’t hire them because of their perceived disability,” said Persaud.

Employers should only ask questions that relate directly to the job and do not touch on enumerated grounds, unless they can prove there’s a bona fide occupational requirement, he said.

From a privacy perspective, there is concern the information could get into the wrong hands, said Polsky. Privacy breaches — whether malicious or not — are a fact of life and they happen every day, despite all the assurances the information will be kept confidential, she said.

The questionnaire also states information may be disclosed to law enforcement agencies, the Canadian Security Intelligence Service, the RCMP and credit bureaus.

While the form is voluntary, refusal to provide answers to any or all of the questions may result in applicants being disqualified from the recruitment process, said the CBSA.

“There’s perhaps the implied message if you don’t volunteer, that would be held against you,” said Polsky. “There’s a fear of retribution for refusing to reveal and perhaps there’s a fear of retribution for revealing. It’s the old ‘damned if you do, damned if you don’t’ and you can’t win.”

And the accuracy of survey results is questionable because people may not necessarily be truthful, depending on how badly they want the job, she said.

While the survey is currently voluntary, there is concern it might be mandatory one day, said Fortin.

“What about if you decide, down the road, that it’s not going to be voluntary? What are you going to do with someone that’s got 25 years’ service and, according to the questionnaire, we can’t be hiring that person based on their history?” he said. “What’s going to happen to the people who are very good employees?”

Anything to declare?

Sample questions from the CBSA integrity questionnaire

• Do you knowingly associate with anyone who uses illegal drugs?

• Have you ever been subjected to blackmail?

• Have you ever threatened the use of violence against your spouse, partner, parents, children, siblings, pets, etcetera?

• Have you ever pointed a weapon such as a knife or firearm, whether loaded or not, at yourself or another person?

• Have you ever viewed child pornography or bestiality?

• Have you ever associated with organized crime or a terrorist group?

• Have you ever hacked into a computer system?

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