Criminal background checks not so ‘clear’

Due diligence in hiring can return litany of responses from police, including ‘not clear,’ ‘incomplete’ and ‘confirmed’ – what does it all mean?
By Trish Dehmel
|Canadian HR Reporter|Last Updated: 03/26/2013

Prior to December 2009, obtaining an employee’s criminal record was relatively easy. With signed consent, the Canadian Police Information Centre (CPIC) permitted accredited employment screening agencies to query the national criminal database on behalf of clients and returned complete information, including all criminal convictions and any results located in the pardoned sex offender database (commonly referred to as a vulnerable sector search).

Those were the good old days — at the end of 2009, the RCMP and CPIC stopped employers and employment screening companies from conducting criminal record checks for the purposes of employment screening.

What was once a fairly straightforward procedure became a mountain of paperwork, regulations and denied access. The door remained shut for more than two months and, with no access to the criminal database, employers were left to blindly hire people who may have had records for violent behaviour, fraud and theft.

But the Canadian Association of Professional Background Screeners (CAPBS), along with other groups, fought that decision and eventually won back crucial access, through police agencies, to the CPIC database.

The win was not without change, however — accredited employment screening agencies in Canada must now have a signed memorandum of understanding with a police CPIC agency, CPIC and the RCMP, which means screening agencies must agree to spot audits of their records at anytime and the retention of all records for several years.

Only Canadian companies are allowed to enter into a memorandum of understanding with these agencies, so if an employer is using an American company to conduct employment screening in Canada, it may want to look for a home-based solution as the American companies would need to go through a Canadian screening agency to conduct these checks.

Additionally, the new changes mean no details of criminal convictions are provided when a criminal record is found, even though the applicant has given written consent to disclose this information to the employer and screening agency. Instead, a check of the database will provide only a “clear” and “not clear” response.

And vulnerable sector searches are off the table as CPIC determined those searches could only be conducted in-person by the applicant at a police station in the area where he resides, with the results returned to the applicant.

So where do Canadian employers stand now, more than three years later? And how can they protect themselves from hiring someone with an extensive history of violence or theft?

Employers have a legal responsibility to provide a safe work environment for employees, customers and visitors. They also have a responsibility to protect intellectual property and confidential business information from criminals and unauthorized persons. In many cases, contracts with other companies and government require assurance that proper due diligence has been completed.

As a result, many employers have decided that, in order to protect themselves and their companies from costly litigation, they will hire only those who have no criminal record. But this approach not only denies employment to a vast labour pool — and is illegal in some jurisdictions — it also unfairly punishes Canadians who may have committed minor offences in their past and have gone on to live productive and crime-free lives. In many cases, the offence has nothing to do with the job they applied for.

In order for an employer to have a criminal record check completed on a prospective employee, she must provide consent to have a name-based criminal record check completed. This must be signed and witnessed by a person who has verified he has personally seen the applicant and compared two pieces of identification to the applicant physically.

One of the pieces of identification must be government-issued photo identification. The employer or applicant must provide this consent and clear copies of the identification to the employment screening agency.

Some companies also give applicants the option of using electronic consent — or econsent — which is a new, secure technology that offers positive identity verification, eliminating the need to provide written consent and photo ID.

Some companies also offer applicants an opportunity to self-declare their criminal record when they submit their consent forms. However, if an applicant attempts to only declare a portion of her criminal history, CPIC will advise that the declaration is “incomplete,” meaning her complete criminal history was not declared.

Additionally, if required, some companies can conduct enhanced criminal record searches through CPIC. The applicant self-declares all convictions as well as any charges that have been laid against him at any time, even when these charges did not result in a conviction, and again CPIC will either confirm or return an incomplete result.

When a criminal record search is completed, the results will be returned as follows:

Negative: No record was found.

Criminal record confirmed: Applicant declared a criminal record and it was confirmed as accurate and complete.

Incomplete: The applicant has a criminal record and did not declare it or did not declare it fully.

Vulnerable sector searches

Some employers and volunteer groups require applicants to provide evidence they are not on the pardoned sex offender registry. These include teachers, medical professionals, volunteer groups and those associated with youth sports.

Originally, the vulnerable sector search was a less-offensive name for a search of the pardoned sex offender database.

In most provinces, a person can change his name without providing evidence he has a clear criminal history, so the RCMP has mandated the pardoned sex offender database search be conducted using only a person’s date of birth and sex as identifying data.

So if an applicant shares this with a person in this database, the only way to confirm he is not the pardoned sex offender is for him to go to his local police station or fingerprint agency and request his fingerprints be taken.

In 2010, the RCMP also decreed that vulnerable sector searches could only be done by police officers at the applicant’s local police station — employers were no longer able to simply find out if an applicant was on the pardoned sex offender registry.

Once fingerprints are taken and submitted to the RCMP, it will check them against the pardoned sex offender registry and national repository. Even if a name is not on the pardoned sex offender registry, the RCMP will send it to the local police where the applicant resides and have them conduct a local indices search under the name.

A local indices database search consists of a search of the local police computer system, which includes all information gathered on an individual through any source. For instance, if a person was questioned about any possible crime, this information could be recorded.

So it is possible that even if RCMP searches of the national repository and pardoned sex offender registry are clear, local indices may come up as unclear and the vulnerable sector search will come back as unclear.

If a “not clear” is given on the local indices search, the police will not provide any details as to why and will recommend the person be fingerprinted and the RCMP conduct a search of the national repository database.

But the CPIC fingerprint search would come back as “clear” because the conviction or information is held only in the local indices database. So the employer is no further ahead, knowing only that there is something in the database that has prevented the local police from issuing a “clear” on the vulnerable sector search.

As well, the RCMP national repository of criminal records only contains information relating to indictable or hybrid offences because it is fingerprint-based. The Identification of Criminals Act does not require fingerprinting of those convicted of summary offences, so they are only included in the national repository if submitted to the RCMP as part of an occurrence involving an indictable or hybrid offence.

A simple solution for employers that want to know if potential employees are on the pardoned sex offenders registry is to have them go to an accredited fingerprint agency, have their prints taken and issue a privacy request for all records held by RCMP and CPIC. This would include the pardoned sex offenders registry. The results are returned within about 14 days.

But a criminal record search is not the be-all-and-end-all of due diligence. Based on the position an employee will hold at the company, employers should also consider checking references, education, credit, driver’s abstract reports and civil litigation records, to name a few.

Trish Dehmel is managing director of CSI Screening in Halifax, a background screening agency providing professional screening results to employers and agencies throughout the world. She can be reached at tdehmel@csiscreening.com or for more information, visit www.csiscreening.com.

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