Navigating the complexities of background checks

Employee recruitment is a challenge for many employers. Not only is it difficult to find employees with the relevant skills, but often it is just as challenging to find individuals who match an employer’s values and expectations relating to personal conduct.

Employers have developed a range of methods to assess employees (and prospective employees) to maximize the chance of a successful employer-employee relationship.

Background checks, including in relation to criminal conduct, often form a part of this process. The following is intended to address relevant issues and related considerations regarding employers and record checks.

Types of record checks

In Canada, there are various types of records that an employer can request from an employee. These include:

Criminal record check: This is the least invasive type of record check and discloses criminal convictions that have not been pardoned.

Criminal record and judicial matters check: This is a more in-depth search, including applicable criminal convictions, findings of guilt under the federal Youth Criminal Justice Act, absolute and conditional discharges, outstanding charges, arrest warrants, and certain judicial orders.

Vulnerable sector check: A vulnerable sector check is an enhanced criminal record check. It includes the above information as well as applicable findings of not criminally responsible due to mental disorder, record suspensions (pardons) related to sexually-based offences, and, in certain circumstances, non-conviction charge-related information.

Right to request a criminal record

A major issue for employers is determining when it is appropriate to request a criminal record check.

The law generally does not expressly prohibit employers from asking job candidates for police records or from requesting a criminal record check as part of the application process.

Employers, however, should ensure that any request for criminal records is made in compliance with related relevant laws.

Read more: An Ontario court upheld the termination of an employee who refused to consent to a background check after being hired.

Laws relevant to criminal background checks are both varied and rapidly evolving across Canada. Generally, however, laws related to criminal background checks fit within three areas: human rights; privacy;, and employment contract law. Further – and depending on the jurisdiction – these laws are described either exclusively under common law or as a combination of statutory and common law.

For example, in Ontario, the Police Record Checks Reform Act establishes the parameters and ways employers may inquire about an employee’s criminal record during hiring.

When can an employer request a background check?

The law provides that employees have the right to privacy regarding personal conduct unless it is rationally connected to the role.

In most cases, however, employers are in a better legal position to request a background check at the recruitment stage. This is because the relationship has not yet commenced, meaning that the employer has not committed to the relationship. While an employer should be prepared to provide sufficient justification for the inquiry even if carried out at the recruitment stage, courts and tribunals are more likely to accept such inquiries.

It is, however, generally more difficult for an employer to request a background check for an existing employee. Requesting a background check may specifically be deemed to inappropriately interfere with an employee’s privacy rights. This is because it is likely more difficult to justify such a request when an employee has already been approved for the role.

An employer who wishes to request a criminal background check mid-employment will therefore almost certainly need to ensure that it has a strong rationale. This may be the case where an employee will be, for example, changing roles.

Justification for a criminal background check can help to defend against a range of employee claims, including constructive dismissal. Employers should accordingly carefully assess the circumstances before requesting a background check.

Criminal records and termination of employment

An employer may terminate an employee’s employment on a with-cause or without-cause basis.

In the case of termination without cause, depending on the nature of the employment contract, an employee may be entitled to significant compensation if they are dismissed.

An employer is not required to provide a severance package to employees who are dismissed for cause.

An employer that wishes to dismiss an employee in relation to the result of a criminal check would accordingly be wise to determine whether it is reasonable to proceed with a termination for cause. In general, the law provides that a criminal charge, and even confirmation of a conviction, will not be enough to justify a termination for cause.  

Specifically, charges or convictions will likely only constitute just cause for termination when it can be demonstrated that there is a nexus between the charge or conviction and the employee’s role.

Read more: When screening potential new hires, background checks must comply with relevant privacy, human rights, and consumer rights laws, says a professional screening expert.

The nexus could range from circumstances where an employee is found to have committed violence in the workplace, or less direct, such as a role involving work with children and it is found that the employee has a conviction related to minors.

It is important to note that while criminal charges and/or convictions may not rise to the threshold for just-cause termination, employers who choose to proceed with termination on a without-cause basis could, depending on the jurisdiction, be subject to liability relating to human rights.  

Human rights and criminal offences

Various jurisdictions across Canada provide protection against discrimination based on matters relating to criminal offences. The extent of that protection, however, varies by jurisdiction.

The Ontario Human Rights Code, for example, provides protection from discrimination in relation to the record of offences. Specifically, an employer cannot discriminate against an employee who has a conviction for which they have been pardoned, or where they have been convicted under a provincial offence.

The protections in Ontario are not provided to situations where charges only have been laid, including conditional discharges. This is distinguished from British Columbia, which has found that discrimination protection extends to criminal matters that are not rationally connected to the employment (or intended employment).

Practical notes for employers during hiring

The following provides some practical matters for employers to consider in managing the implementation of criminal record checks:

• Employers should consider waiting to request a criminal record check until they are ready to offer a candidate the position. This may help reduce exposure to a human rights complaint, as hiring decisions can be made blind and cannot be cited to have been influenced by the results of a background check.
   
• Employers should be alive to any relevant privacy legislation in their jurisdiction prior to requesting a background check, as this is a request for personal information from candidates.
   
• Employers should consider whether a background check is necessary in the circumstances, and whether a similar result can be achieved through other means – means that are less intrusive for the employee, and that mitigate risk for the employer.
   
• Employers should ensure that there is a nexus between the criminal check they are requesting, and role the candidate is aiming to secure. Specifically, unless your jurisdiction provides limited human rights protection in relation to criminal backgrounds, the check should be for a work-related purpose in order to be seen as reasonable.

Practical notes for criminal record checks

• The results of the check should be released to the employee directly before being released to the employer (with the employee’s permission). This will allow employees to ensure that the information in the report is correct prior to its disclosure.
   
• If an employee receives the background check report and the records are inaccurate or include information that should not be included based on the disclosure rules, an employee can seek a correction or reconsideration with the check provider prior to the information being released to their employer.

Given the range of legal considerations, employers would be wise to plan ahead in relation to criminal background requests to ensure that they are carried out both when appropriate and in a manner that is mindful of employment, human rights, and privacy laws. This can help to secure helpful information to assist employers in making key operational decisions while reducing potential liability.

Sharaf Sultan is an employment lawyer and principal of Sultan Lawyers in Toronto.