Criminal record checks for existing employees

Can an organization perform criminal background checks on employees after they have started? What if they refuse? Our organization is not a union environment and has less than 50 full-time staff.

Colin Gibson
Question: Can an organization perform criminal background checks on employees after they have started? What if they refuse? Our organization is not a union environment and has less than 50 full-time staff.

Answer: In Canada, a criminal record check on an individual can only be conducted with written consent. Where an employer requires an employee to undergo a criminal record check, it must disclose to the employee the purposes for its collection of the information.

Conducting criminal record checks on employees may raise issues under human rights and privacy legislation, for both unionized and non-union employers. Generally speaking, an employer may require an employee to consent to a criminal record check if a reasonable person would consider the request appropriate in the circumstances. The type of operation run by the employer and the nature of the position held by the employee will factor into this consideration. Certain jurisdictions, including British Columbia, require employees who work with children to submit to a criminal record check as a condition of employment.

The employer must be careful to observe the statutory requirements pertaining to the retention, use and disclosure of the employee’s criminal record and other personal information.

Most jurisdictions have human rights legislation which prohibits employers from discriminating against an employee with a criminal conviction if the criminal conviction is unrelated to the person’s employment. In the context of current employees, discrimination may take the form of refusing to continue to employ a person, or treating a person differently regarding a term or condition of employment, on account of the person’s criminal record.

Having chosen to hire an employee without requiring a criminal records check, an employer would need to have reasonable grounds to require the employee to consent to such a check after the commencement of employment. Otherwise, the employer could be exposed to a human rights complaint or a constructive dismissal claim.

Colin G.M. Gibson is a partner with Harris & Company in Vancouver. He can be reached at cgibson@harrisco.com or (604) 891-2212.

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