Too much information?

B.C. privacy commissioner urges tougher rules for background checks
By Liz Bernier
|Canadian HR Reporter|Last Updated: 05/30/2014

B.C. privacy commissioner urges tougher rules for background checks

By Liz Bernier

As part of her application for an office job, Eileen had a routine police information check done.

But she was shocked by the results: Her record showed information about a past suicide attempt — something that led to a very uncomfortable conversation with her prospective employer. In the end, she did not get the job.

Eileen’s story is one of many included in an investigative report by the Office of the Information & Privacy Commissioner for British Columbia about the use of police information checks in the province. The report — which is not legally binding — presents a number of recommendations around record checks, particularly in regards to mental health and non-conviction information.

B.C. privacy commissioner Elizabeth Denham said the report is the most important one she has ever written.

“(That’s) because most of us find ourselves applying for employment or applying for a volunteer position — this involves almost all British Columbians. And the police policy of broad-based information checks that contain non-conviction information can frustrate a person’s ability to find employment, which is so fundamental to our well-being,” she said.

Typically, the process in B.C. — like elsewhere in Canada — is an employer requires a prospective employee to obtain a background check, criminal record check or police information check from the police or RCMP, said Denham.

That information is then turned over to the employer — and it may contain some pretty sensitive information.

“If non-conviction information is released… many people say, ‘Well, what’s wrong with that?’ Because the individual has consented to the release of that information to their prospective employer,” she said.

“What I’ve said in my report is that’s not true consent. It’s a near fiction of consent because individuals really don’t have a choice. If they want to obtain employment and if the prospective employer requires a background check, they’re going to obtain the information.”

Legal, employer concerns

The report gives a strong indication of how the commissioner would approach any privacy complaints in this area, according to Colin Gibson, a partner at Harris & Company in Vancouver.

But it’s important to note many of the report’s areas of concern have existing human rights protections under the B.C. Human Rights Code, said Gibson.

“(For example), an employer can’t refuse to hire or discriminate against a person based on a mental disability, unless there’s a bona fide occupational requirement.”

Also under the code, an employer can’t refuse to hire or discriminate against a prospective employee because of criminal convictions unrelated to employment, he said.

“(Employers should) consider very carefully how they use the information that they gain through these checks, in regards to both prospective employees and existing employees,” he said.

“And they need to be prepared to justify the reasonableness of what they’re doing, both under privacy legislation and under human rights legislation.”

At the same time, some of the report’s recommendations raise potential concerns for employers, who have an obligation to provide a safe workplace, said Gibson.

One recommendation — for employers to only access conviction information that is relevant to the position (for positions outside the vulnerable sector) — could potentially be problematic, he said.

“Often, the employer is going to have to see the full list of convictions to determine which of those are relevant or potentially relevant to the prospective employment,” said Gibson, citing, for example, a position that involves handling large amounts of cash. If the employer is only informed of theft or fraud-related convictions, does that mean other offences might not also be relevant?

“What about drug offences? The circumstances where… employees are stealing large sums of money often stem from an employee who has some kind of a drug problem or is involved in the drug community. So seeing that kind of a track record of offences, you could see how that could be potentially relevant in the circumstances.”

But employers should also think carefully about which positions these background checks are actually relevant for, he said.

“There’s going to be a lot of jobs where it isn’t appropriate to request conviction information. ”

Mental health and the right to privacy

The report’s most important recommendations, though, centre around mental health information and non-conviction information, said Denham.

“The most important change is that there should be a prohibition against the disclosure of mental health information in the employment setting. So that should be off the table even for people who are working in the vulnerable sector,” she said.

“Secondly, outside of employees who are working with children or vulnerable adults, non-conviction information should never be released.”

The presence of mental health information in police information checks — and, as a result, in pre-employment screening — is a striking example of the stigma around mental illness, according to Jonathan Morris, director of public policy at the Canadian Mental Health Association (CMHA), B.C. division, in Vancouver.

Some may feel human rights protections are enough to prevent discrimination if sensitive mental health information is revealed in the hiring process — but, in practice, this kind of discrimination can be difficult to pin down, said Morris.

“It’s a hard thing to prove. But I don’t think we’re at a point where people are freely sharing that information without fear that there might be consequences,” he said.

“I would worry and hope that this doesn’t happen, but I imagine it might... So that has quite an impact upon people, especially when livelihood and educational potential (could be impacted).”

Denham agreed this sort of discrimination may take place under the radar.

“If you were an employer and you had three candidates and one of them had a clear check and somebody had a suicide attempt on their file or a complaint by a neighbour or some other issue, then I think most employers would choose the candidate who had a clear check,” she said.

The B.C. branch of CMHA “wholeheartedly applauds” the report’s recommendations around preventing mental health information from being shared in both general background checks and vulnerable sector checks, said Morris.

“That’s a really important thing from an HR perspective. We would argue that if checks (with mental health disclosures) remain for the vulnerable sector, it implies that people with a mental health problem can’t work with vulnerable sectors, and there’s an inadvertent stigma attached there.”

Overall, Denham hopes the report will serve as a catalyst for awareness — and for change.

“Similar problems exist across the country. I think B.C. is probably an outlier from the perspective of the breadth of these background checks. But Ontario is looking at this issue, Alberta is looking at this issue, and employers that are operating in both the public sector and the private sector have privacy obligations, and they need to look at the system,” she said.

“It’s a warning bell that should go off for employers to do some searching and find out what kind of background checks are being conducted by police services before they send prospective employees off to provide records.”

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