Background screening job candidates can be an important part of an employer’s recruitment process, helping to identify the best-qualified candidates and to manage what can be significant risks associated with a bad hiring decision.
There are several different types of background checks that are generally permissible in Canada and the type of checks an employer may wish to consider will depend on the nature of the position for which the candidate is being considered. Most widely used are those that relate to the educational, employment, criminal and credit history of candidates.
Employers are understandably eager to learn as much about a candidate as possible, however, they must tread carefully. An improperly conducted background check (or a properly conducted one where information obtained is improperly used or disclosed) can expose an employer to liability. It is critical, therefore, that any background check is conducted in accordance with applicable provincial law. Federally regulated employers must ensure compliance with federal law. Both privacy and human rights legislation, discussed here in relation to provincial law, exist at the federal level as well.
While the provisions may differ, legislation relating to privacy is common among the provinces, and human rights legislation ubiquitous. Both impose important limitations on background checking, with respect to how checks are conducted and how the information collected is used and handled.
The majority of provinces (all save Quebec and New Brunswick) have enacted credit/consumer reporting legislation applicable to credit checks that impose, among other things, notice or consent requirements if a credit check is being conducted.
British Columbia, Alberta, Manitoba and Quebec have enacted comprehensive privacy legislation regulating the collection, use and disclosure of personal information in the private sector. Since effectively all information obtained about a candidate through background checks is “personal information” under the various statutes, employers must be alert to the privacy legislation in force in the province.
Every province has enacted human rights legislation that prohibits discrimination in employment based on specified prohibited grounds. Human rights legislation may limit an employer’s ability to use information collected during a background check when making employment decisions if that information relates to a prohibited ground of discrimination. For example, some jurisdictions prohibit discrimination based on certain criminal convictions.
Notable features of each province’s approach to privacy and human rights as they relate to background checking include the following:
An employer may, without a candidate’s consent, collect personal information if the collection is “reasonable for the purpose of establishing… an employment relationship.” However, before doing so, the employer must notify the candidate. Human rights legislation prohibits an employer from refusing to hire a candidate on the ground that she was convicted of a criminal or summary conviction offence if that offence is “unrelated” to the employment.
Much like B.C., an employer may, without a candidate’s consent, collect personal information if it is reasonable for the purpose of establishing an employment relationship. The employer, however, must notify the candidate it will be collecting such information before it does so. An employer may refuse to hire a candidate because he has a criminal record, even if the offence is entirely unrelated to the position for which the candidate is applying.
Employers are not restricted by private sector privacy legislation. Even if an offence is entirely unrelated to the position being applied for, an employer may refuse to hire a candidate with a criminal record.
An employer may not collect personal information about a candidate without the candidate’s consent. Furthermore, certain information must be excluded from any report, such as adverse factual or investigative information more than six years old. Human rights legislation does not prohibit an employer from refusing to hire a candidate because she has a criminal record. This is true even if the offence is unrelated to the intended employment.
Background checks are not restricted by private sector privacy legislation and an employer may refuse to hire a candidate convicted of a criminal offence unless he received a pardon (in which case the employer may not refuse to hire the candidate solely on the basis of the conviction).
An employer may only collect personal information from a candidate directly, unless the candidate consents to collection from third parties. That said, an employer may collect third party information without a candidate’s consent if the employer has a “serious and legitimate” reason and certain conditions are met. An employer may not refuse to hire a candidate convicted of a penal or criminal offence if the offence is “in no way connected” with the employment or if a pardon was granted.
New Brunswick, Nova Scotia, Newfoundland and Labrador:
An employer is not restricted by private sector privacy legislation when conducting background checks and human rights legislation does not prevent an employer from refusing to hire a candidate with a criminal record, even if the offence is unrelated to the intended employment.
Prince Edward Island:
An employer is not restricted by private sector privacy legislation when conducting background checks, but an employer may not discriminate against a person because she has been convicted of a criminal or summary conviction offence if the offence is unrelated to the intended employment.
No matter the province, there are certain best practices recommended:
• Perform background checks only after a conditional offer of employment has been made and accepted. This helps protect an employer against allegations that information relating to characteristics protected under human rights legislation improperly influenced the hiring process.
• Collect only information reasonably necessary in order to assess a candidate’s application. For example, if the employee is not entrusted with cash or financial responsibilities, a credit check may not be necessary.
• Always ensure the confidentiality of the information obtained, sharing it only among those individuals directly involved in the hiring process.
Employers should consider developing a background screening policy, developed in accordance with applicable provincial law. This will allow the employer to take advantage of the insights into a candidate’s history that background screening allows, while minimizing potential liability to the employer related to the collection, use and disclosure of the information obtained.
Michael Howcroft is a partner at Blakes in Vancouver and Noemi Blasutta is an articling student at Blakes in Toronto.
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