Ex-offenders looking for a break

But changes to employee safety rules have some employers nervous about hiring
By Sarah Dobson
|Canadian HR Reporter|Last Updated: 01/28/2013

On CBC’s 2012 TV show Redemption, 10 ex-offenders — imprisoned for crimes ranging from armed robbery and drug trafficking to extortion and assault — participated in a series of business-related challenges. One of them was chosen by venture capitalist Kevin O’Leary to receive $100,000 as a startup investment.

The premise sounds simple but, in real life, ex-offenders can have a much harder time catching a break and finding meaningful employment. They face more than a few barriers, including a lack of vocational experience, possible mental illness or addiction issues, social stigma and, of course, a criminal record if they haven’t been pardoned.

And with the passage of workplace violence and harassment legislation — such as Bill 168, which became law in Ontario in 2010 — the endeavour has become that much harder, according to Greg Rogers, executive director of the John Howard Society of Toronto, a non-profit organization supporting the rehabilitation of people who have been in conflict with the law.

“One of the clauses in the law is that if I, as an employer, hire somebody with a violent record and they do something violent at the workplace, not only can John Howard or McDonald’s or whomever be sued, I personally am liable as the manager who did the hiring,” he said.

Virtually all the clients of John Howard have a criminal record — but employers don’t differentiate when it comes to background checks, said Rogers.

“There’s a difference between a drug charge in 1994 and axe murderer, and the vast, vast majority (of offences) fall into the drug charge in 1994 category. And because of the fiscal situation, the employment situation these days, employers don’t need to be fussy. So if Johnny has a criminal record and Billy doesn’t, Billy gets the job,” he said.

“So we’re effectively taking people, giving them a prison sentence and turning it into a life sentence.”

Employers are definitely asking more questions about criminal background checks and people with a history of violence because of the changes to Ontario’s Occupational Health and Safety Act, according to George Leibbrandt, a partner at law firm Samfiru Tumarkin in Toronto.

“Employers are aware now that they have this enhanced duty, enhanced responsibility to look out for the health and safety of all of their employees,” he said. “The act places the legal burden on the employer and if they don’t demonstrate they have acted with due diligence, then they may be liable for damages.”

In the last four years, there has been an increase in employers seeking background checks and that’s partly because of Bill 168, said Gino Fiorucci, CEO of pre-employment screening firm ISB Canada in Milton, Ont.

“It changes everything in the sense that if I have an assault and battery conviction and I’m going to be working with people in my office, now the employer must let everyone know about that.”

If an employer requests a criminal background check from the Canadian Police Information Centre (CPIC) and it comes back “unclear” — as opposed to “clear” or “confirmed” — Leibbrandt tells clients to ask about the nature of the offence as it may be criminal but not pose a risk to another employee. He also tells employers to consider the workplace and the type of person required, he said.

“If (the crime) was 10 years ago, it may have just been a foolish thing that somebody did. But at this point, it’s not reasonable to assume it poses a risk to anybody anymore.”

There are also human rights issues involved.

“You’ve got to tread very, very carefully in this area,” said Leibbrandt. “I expect the human rights tribunal will be looking very carefully at situations where ex-offenders claim they’ve not been hired because of an offence.”

However, Rogers said he’s not sure that will be an issue.

“Bill 168 has created enough grey area that I don’t know of any cases… where people have filed because they feel they’ve been discriminated against by having a criminal record.”

On the other hand, the privacy commissioner is telling employers to maintain everyone’s privacy, said Fiorucci. As a result, many employers are taking a don’t ask, don’t tell approach or not hiring anyone with a record so they don’t have to worry about warning other workers and facing a subsequent complaint from the employee.

“People are nervous about it,” he said. “You’ve got these small and medium-sized businesses that don’t have an in-house lawyer, they don’t have the budget to take on a lawyer to spend $10,000 to figure this stuff out — they don’t have all these resources.”

Bill 168 has also led to a spike in people seeking pardons, said Rogers. But the waiting period for pardons — now called “record suspensions” — has increased to five years for summary conviction offences and 10 years for indictable offences (and the user fee for the processing of a record suspension application has increased from $150 to $631).

So if a person is on probation for one year, he can’t start the process for a record suspension until the end of his probation and then has to wait five years, he said. So it would be six years before he loses his criminal record under the CPIC.

“In the meantime, what are we supposed to do to find this guy a job?” said Rogers. “What we end up doing is referring guys to under-the-table employment, things like moving companies, construction, warehouses. But you know, if something happens to them, they don’t have workman’s comp, they’re not getting sick days, in some cases they’re being stiffed — they’re not even being paid for an honest day’s work. You don’t want to feed the underground economy.”

In Ontario, 75,000 people leave jail each year and that often means 20-year-olds end up on welfare because employers won’t give them a break, he said.

“I don’t know how these guys are ever going to break the criminal justice cycle if we can’t get them working,” said Rogers. “(It’s up to) employers to realize what the law means and to differentiate. And, also, we need champions out there. Give people a chance. Give our guys a chance — you’ll be very pleased with the results, for the most part.”


Jailhouse Training 

CORCAN offers real-life experiences to offenders

Giving federal offenders employment training and employability skills is one of the main objectives of CORCAN, a rehabilitation program of Correctional Services of Canada that operates in several institutions across the country with four business lines: textiles, manufacturing, construction and services (such as printing and laundry).

“I’m giving them an opportunity to work in an environment that, as closely as possible, duplicates the private sector,” said John Sargent, CEO of CORCAN. “It gives them confidence and, in many cases, a lot of work we do in the four business lines allows us to give them skills that are fairly generic to working — reading directions, meeting deadlines, listening to their supervisor, reading the manual on how a piece of equipment works and following guidelines.”

While many people in the general population are apprehensive about offenders, they’d change their tune if they spent time at the institutions, said Sargent, adding the people are disciplined, motivated and have a high desire to succeed.

“I’m sure companies taking the appropriate due diligence would still find some of our offenders would be attractive to them. Working with us, they certainly develop the work ethic and realize the importance of work and sticking to it,” he said.

However, many of CORCAN’s work programs were criticized in a 2012 analysis by the Public Safety Department, according to a Jan. 7, 2013, Globe and Mail article.

“One of the biggest weaknesses of CORCAN is the absence of any correlation between either the work or the vocational training programs with labour market analyses,” stated the memo to Public Safety Minister Vic Toews. “Training inmates for the jobs of yesterday, or for non-existent jobs, or for jobs in already over-resourced fields in competition with non-offenders is a waste of scarce resources and counterproductive to public safety.”

But Correctional Services recognized last year it needed to do a better job matching training opportunities with labour market projections, according to a spokesperson speaking to the Globe, and it is looking to put more emphasis on programs that respond to labour market trends and take into account the types of jobs available to someone with a criminal record.

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