QUESTION: Can an employer ask a job candidate about her police record? If the employer wants to tighten security in the workplace, can it ask existing employees about any charges or convictions?
ANSWER: Employers are not expressly prohibited from asking job candidates about their police records, or from requesting a criminal record check as part of the application process. However, employers should be aware of the human rights and privacy concerns that may arise if they make such inquiries.
Human rights legislation in several Canadian jurisdictions prevents employers from discriminating on the basis of certain criminal charges or convictions. The level of protection varies depending on the specific language of the legislation.
In British Columbia, Newfoundland, Prince Edward Island, Quebec and the Yukon, an employer cannot discriminate against an employee because of a criminal conviction that is unrelated to his employment.
In Ontario, the prohibited ground of discrimination is “record of offences.” There is no human rights protection from discrimination on the basis of a criminal record in Alberta, Manitoba, New Brunswick, Nova Scotia or Saskatchewan.
Certain provinces also distinguish between criminal charges and convictions.
In Ontario, for example, the Human Rights Commission has found that the statutory prohibition against discrimination based on an employee’s record of offences does not apply to criminal charges.
British Columbia has taken a different approach, even though the language of the Human Rights Code refers to convictions. In Clement v. Jackson, the BC Human Rights Tribunal found that this protection also extends to criminal charges.
In jurisdictions where an employer is prohibited from discriminating based on criminal convictions that are unrelated to employment, an employer must inquire about the individual circumstances of the criminal record in each case, to determine whether there is a relationship to employment.
In Woodward Stores (British Columbia) Ltd. v. McCartney, the Supreme Court of British Columbia ruled that the following factors should be considered in determining whether a criminal conviction is related to employment or intended employment:
• Does the behaviour for which the charge was laid, if repeated, pose any threat to the employer’s ability to carry on its business safely and efficiently?
• What were the circumstances of the charge and the particulars of the offence involved — for example, how old was the individual when the events in question occurred, and were there any extenuating circumstances?
• How much time has elapsed between the charge and the employment decision? What has the individual done during that period of time? Has the person shown any tendencies to repeat the kind of behaviour for which she was charged? Has the individual shown a firm intention to rehabilitate herself?
Practically, an employer may wish to wait until it is ready to offer a job candidate a position before asking for a criminal record check. If an employer completes a criminal record check on all applicants and discovers that one candidate has a protected criminal record, the employer may find itself exposed to a human rights complaint if it decides not to hire that person.
Before requesting criminal record checks, employers should also be mindful of the privacy legislation in their jurisdiction governing the collection and use of personal information. Generally speaking, an employer is able to collect personal information from a criminal record check if it is “reasonably necessary” in the circumstances.
There must be a clear nexus between the information being collected and a legitimate work-related purpose. A blanket requirement that all job applicants for all positions must undergo a criminal record check is unlikely to meet the reasonable necessity test.
Factors to consider include the nature of the employer’s operation and the position in question. Employers should also consider whether there is a less invasive way of achieving the same results, and whether the loss of privacy is proportional to the benefits gained. It may be reasonable to do a criminal record check for positions of trust, or where the primary duties involve protecting the security of people or material assets.
It is usually easier for an employer to justify a criminal record check for a job applicant who is a stranger to the employer’s organization than for an existing employee who is known to the employer.
Once an employer becomes familiar with a current employee and his suitability in an existing role, it becomes difficult to establish that it is reasonably necessary to conduct a criminal record check to allow the employee to continue in that role.
It may be more reasonable to require a check if the employee is taking on significantly different responsibilities, and if a criminal record may be relevant to those new responsibilities.
Several provinces have statutes that specifically require criminal record checks in specified circumstances. In British Columbia, for example, the Criminal Records Review Act requires certain categories of organizations to ensure that all employees who work with, or have unsupervised access to, children or vulnerable adults, undergo criminal record checks.
This requirement covers employees such as teachers, health-care professionals, social workers and care facility employees.
Job applicants who have been offered such positions are also required to undergo a criminal record check.
For more information, see:
• Clement v. Jackson, 2006 CarswellBC 3539 (B.C. Human Rights Trib.).
• Woodward Stores (B.C.) Ltd. v. McCartney, 1983 CarswellBC 58 (B.C. S.C.).
Colin Gibson is a partner at Harris and Company in Vancouver. He can be reached at (604) 891-2212 or firstname.lastname@example.org.
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