Conducting criminal background checks (Legal view)

Can employers refuse to hire a worker if he refuses to submit to a background check?
By Stuart Rudner
|Canadian HR Reporter|Last Updated: 08/04/2006

Employment lawyers are often asked whether an employer can conduct a criminal record check before hiring prospective employees.

If the employer is asking, the question is typically: “Can we insist the employee disclose a criminal record and refuse to hire them if they don’t?”

If it’s the employee asking (if they have something in their past that they are concerned about), they will typically ask whether human rights legislation or some other law gives them the right to refuse the criminal record check without sacrificing the job opportunity.

Arbitrator Alan Beattie recently had occasion to consider this issue at an arbitration hearing involving the Union of Calgary Co-Operatives and the Calgary Co-Operative Association Limited in a decision dated February 2006.

The worker, a young person identified as J.J., was hired in a retail sales position. The employer had detailed recruiting policies and procedures based upon its view that an employer in the retail industry must conduct due diligence regarding the bondability and insurability of employees. It considered it vital to ensure the honesty and trustworthiness of prospective employees. This was due, at least in part, to the fact employees are dealing with cash and merchandise.

The employer asked all applicants whether they had been convicted of any offence for which they had not been subsequently pardoned. Furthermore, any offers of employment were conditional upon the employee being bondable and upon the information regarding the prospect’s criminal record being verified. New employees had to provide a clearance form requesting the release of their criminal record, which would be forwarded to the local police service.

The employee would then have to forward the results to the company in order to confirm the information he had provided on the application form. Employees were explicitly warned that if the documents were not provided within two weeks of their starting work, there could be an administrative termination of their employment.

J.J. chose not to provide the police information to the employer and his employment was terminated as a result. A grievance was filed, alleging unjust termination. Complicating the matter was whether a young person has to disclose prior convictions pursuant to the Young Offenders Act.

Arbitrator Beattie spent considerable time in his decision reviewing the policy reasons behind the provisions in the Young Offenders Act limiting the disclosure of details regarding convictions under that act. In summary, there is a desire to protect young offenders, allow them to rehabilitate themselves and grow into productive members of society. If the fact young people have been convicted of an offence is publicized, it would impede their ability to obtain employment and contribute within society. On the other hand, there is also a need to protect society, which includes providing them with information regarding the people they propose to deal with or employ.

Arbitrator Beattie’s review of the law confirmed that employers can legally refuse to hire someone because of a record of prior criminal offences. As a result, according to the arbitrator, it is reasonable for employers to require that prospective employees provide confirmation of their criminal record or lack thereof. However, this suggestion must be tempered by the fact that refusing to employ someone due to a criminal record is only allowed where it is reasonably connected with the employment in question.

Once an employer becomes aware of a prospective or existing employee’s criminal record, it must determine, reasonably and in good faith, whether the individual is a suitable candidate. This would include a consideration of whether the employee is bondable or insurable, where that is a factor. Employers need information regarding the criminal record in order to do so.

In this case, the evidence was that the employer had, in the past, considered prospective employees’ criminal records reasonably and in context. For example, drinking and driving convictions were not a bar to employment. Arbitrator Beattie agreed the employer had a legitimate interest in knowing whether prospective employees had a criminal record. The prospective employee was entitled to protect his privacy rights by refusing to disclose his record. However, he could not then claim unjust dismissal.

The grievance was therefore dismissed.

Stuart Rudner is a partner who practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672.

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