Requesting information for background checks

When you can and can't ask for birth date and SIN

Stuart Rudner

Question: Can an employer ask for a job applicant’s birth date and social insurance number in order to perform background checks? What information can be requested and can the employer refuse to consider an applicant if they refuse to provide this information?

Answer: The application process is particularly risky when it comes to human rights concerns. Organizations want to minimize any risk that they will become aware of superfluous information related to a protected ground under human rights legislation. If they do, and if they ultimately decide not to hire the individual for unrelated reasons, they face the risk that the applicant may allege that she was not hired based upon the protected ground. Practically speaking, the onus will then fall upon the organization to disprove the allegation. And as we all know, proving a negative is often particularly difficult.

As a result, I advise clients to ask for and obtain no more information than is reasonably necessary in order to make a determination as to whether an individual is appropriate for the job in question. This applies at each step of the process. Application forms should be scrutinized with this in mind and any questions that are unnecessary should be removed. Background checks (including online searches) and interview questions should be similarly scrutinized.

Typically, the amount of information that can be obtained will increase as the hiring process evolves. In other words, organizations may legitimately be entitled to more information at the time of hiring than they could reasonably request in an application.

With respect to requesting birthdates and social insurance numbers in order to perform background checks, it is obvious that requesting such information is a risky proposition, in that it will provide the organization with information relating to a protected ground. Doing so too early in the process can expose employers to allegations discussed above.

Typically, what I recommend to organizations is that they hold off on requesting any such information until they are prepared to make an offer of employment. At that time, the offer can be made conditionally upon whatever factors are relevant. Of course, employers should ensure the conditions are reasonably related to the job duties.

Employers should also maintain scrupulous notes regarding why they decided not to hire an individual, so they will be in a stronger position to disprove allegations that the decision was based upon protected grounds.

With respect to background checks, many of our clients now use third parties to carry out these checks. What they can do is make a conditional offer of employment and then have the applicant deal directly with the third party and provide whatever information is necessary in order to have the background check completed. By proceeding in this way, the employer can minimize any risk that they will receive information relating to a protected ground.

Stuart Rudner is a partner in Miller Thomson LLP’s Labour and Employment Group in Toronto. He can be reached at (416) 595-8672 or srudner@millerthomson.com.

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