Conducting criminal background checks

What is the legislative context for conducting criminal background checks?

Tim Mitchell
Question: I work for a municipality and I’m curious about criminal reference checks. What is the legislative context for doing them? For example, where does the law require it? What do employers need to do in order to enforce them?

Answer: Criminal reference checks may be required under statute for certain types of legislation. Commonly, employees working with children or dependent adults are compelled by statute to submit to criminal references checks as a condition of their employment.

In many instances, however, an employer establishes its own policy requiring criminal reference checks for prospective employees or employees engaged in certain types of employment.

Such policies do not necessarily have a statutory context in the sense of being required or permitted by statute. They are simply means by which an employer establishes the existence of qualifications it views as desirable or essential for employees.

Because criminal reference checks do involve intrusion into an employee’s private life, they are subject to somewhat different considerations than might apply to other types of employee qualifications.

For example, federal and British Columbia human rights legislation preclude discrimination in employment in relation to certain types of criminal records.

As well, privacy legislation in force federally and provincially will have an impact on what an employer can demand having regard to its particular workplace and also on such matters as how the information is collected, retained and disclosed.

The employer’s ability to enforce a demand for a criminal rights check in the case of a resistant employee is a complicated issue entirely dependent upon the facts of a particular case.

The answer will depend on:

•whether the check is one of those required by statute or by a unilateral employer policy;

•whether the employment is subject to human rights legislation which does deal with criminal records;

•whether the employment relationship is a common law relationship or one governed by a collective agreement and labour relations legislation;

•whether the employment is of a type where a demand for a records check is reasonable; and

•whether there has been compliance with any applicable privacy legislation.

Tim Mitchell is an employment lawyer with Laird Armstrong in Calgary. He can be reached at [email protected] or (403) 233-0050.

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