Criminal Background Checks Okay for Security-Sensitive Jobs

Notified that the employer would be requesting criminal background checks for employees in security-sensitive positions, the union filed a policy grievance arguing that the practice was unwarranted and that it represented an unreasonable exercise of management rights.

The employer, a distiller with operations both in Ireland and Scotland in addition to an Ontario location next to the U.S. border, sought to implement the policy in response to the Customs-Trade Partnership Against Terrorism (C-TPAT) administered by the United States Customs and Border Protection Agency (CPB).

Introduced in 2004, the C-TPAT is a program designed to enhance supply chain security for goods entering the United States. The voluntary program outlines compliance standards for a range of security issues, prescribes best practices — including criminal background checks where permitted — and accords status to companies based on their level of compliance.

Potential border delays

Where a top-tier rating eases access for goods entering the U.S., a lesser rating could increase the likelihood of delays due to more intensive security checks and product quarantines. Given that the company was shipping 83 per cent of its volume across the border, it took the position that it needed to adopt measures necessary to maintain its status and avoid the potential for border delays.

The union argued that the policy was unwarranted and that it represented an unjustified interference in the privacy rights of workers. Before the arbitrator, the union said that while criminal background checks are recommended by C-TPAT, they are not mandatory. In fact — the union pointed out — the employer’s plants in both Scotland and Ireland passed C-TPAT audits even though criminal background checks were not conducted because of legal restrictions in those jurisdictions. The notion that the company would be downgraded in the event that the Ontario plant declined to perform criminal background checks was pure speculation, the union said.

Criminal background checks were not unreasonable for employees in security-sensitive positions — those who load and handle product and who prepare and control related paperwork — the employer said. The employer acknowledged that criminal background checks involve screening and potential acquisition of sensitive information about employees. However, the company argued that its legitimate business interests must be considered along with the elements it put into place in order to protect the privacy of its employees.

Employees with more than five years were exempt, the company pointed out. The checks were only for security-sensitive jobs and employees currently holding those positions were to be “grandfathered.” The policy would not have application with respect either to provincial offences or to criminal offences for which a pardon had been granted. Nobody would be fired for an “unclean” check and the information would be kept secure and beyond the reach of line managers.

Enhanced security post “9-11”

The arbitrator found that legitimate business and operational considerations supported the imposition of the policy. The arbitrator acknowledged that the program was voluntary but noted the potential for negative consequences in the event of non-compliance. “It is a matter of public record that the United States government is materially more security conscious in the post 9-11 era and that it responds aggressively to perceived weaknesses in border security.”

In the circumstances, the arbitrator was sympathetic to the company’s desire to comply with the best practices identified by C-TPAT, “I can readily understand why [the company] would not want to engage in a course of action that could jeopardize its Tier status and lead to … adverse consequences …”

The policy was in compliance with provincial privacy legislation, the arbitrator said. Employee consent was required for the background check, which was not mandatory. Employees who refused were not subject to discipline or termination — they were simply ineligible to be candidates for jobs designated as security-sensitive.

The grievance was dismissed.

Reference: National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-CANADA), Local 2098 and Diageo Canada Inc. M.V. Watters — Sole Arbitrator. F. Baloo for the Union and M. Marcotte for the Employer. January 20, 2010. 27 pp.

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