Hiring the right employees is essential to the success of a business. Accordingly, the importance of thorough pre-employment screening of job candidates cannot be overemphasized. Having said that, there are some important practical and legal considerations relating to pre-employment screening of which both employers and employees should be aware.
Many employers undertake criminal background checks as a means for determining suitability of the candidate for a position. These employers should note that while the specific laws vary by jurisdiction and some exceptions apply, human rights legislation generally prohibits employers from refusing to hire or continuing to hire an individual based on certain protected grounds – including criminal convictions.
In British Columbia, for instance, the Human Rights Code prohibits employers from refusing to employ or from discriminating against a person regarding their employment because that person has been convicted of a criminal or summary conviction offence if the criminal conviction is unrelated to the employment or to the intended employment of that person. Thus, unless the employer can establish that a prior conviction is 'related' to the position in question, or that having a clear criminal record is a bona fide occupational requirement, the employer cannot refuse to employ a candidate simply because a criminal record check yields a positive result.
Both of the above-noted inquiries (the relation of the record to the position and whether having a clean record is a bona fide occupational requirement) involve the consideration of a number of factors. In each case, specific information relating to the offence in question must be considered in light of the occupational requirements.
Once the decision is made that a criminal background check is related to the position or continued employment, employers should also be aware of recent changes that the RCMP have introduced in how criminal background checks are performed. Due to these changes, employers will need to implement some changes in their procedures and practises.
Criminal background checks have historically been performed by submitting a request to a designated Canadian Police Information Centre ("CPIC") agency, such as a local police station or background-screening services agency. These test results were typically returned within a few days. However, since the issuance of RCMP's directive and policy statement at the end of 2009, employers can no longer obtain a clear verification as to whether a prospective employee has a record or not.
Instead, without the candidate first submitting to a fingerprint analysis, neither the existence of a record nor any particulars of the potential record are released to employers. Employers are simply told: (a) "the search could not be completed [and] in order to complete the request, the applicant is required to submit fingerprints to the National Criminal Record repository" (in the case of a positive result); or (b) "the search did not identify any records for a person with the name(s) and date of birth of the applicant" (in the case of a negative result).
Moreover, as a result of the requirement for the candidate to submit fingerprints for any meaningful results to be released, employers are facing delayed processing times for detailed results to be released to them – this is currently taking approximately 120 days.
Where information on the candidate's criminal record history is important for an employer, employers should consider the following to deal with the above-noted changes introduced by the RCMP.
- Consider whether a clear criminal record is a bona fide occupational requirement in light of the position in question. Proper legal advice should be sought in making this determination to avoid breaching human rights legislation.
- Obtain the candidate's consent to perform a criminal background check and explain that the candidate may be required to submit their fingerprints for detailed information about their criminal records history.
- Start your search early to allow yourself enough time to obtain search results before the hiring decision needs to be finalized.
- Consult your employment law advisor for ways to properly structure conditional offers of employment to deal with positive criminal record history results.
- Obtain advice from your legal advisor on appropriately structuring probationary periods to allow flexibility to deal with positive criminal record history results.
- If continued criminal record free status is necessary for existing employees, ensure that employees are informed of the requirement for continued disclosure and co-operation with the criminal record check process for the duration of their employment.
- Retain copies of results and notes of discussions with candidates and hired employees relating to their criminal background history – this is both good practice and a requirement under applicable privacy legislation. Legal advice should be sought in connection with retention requirements and the duration for retention.
Pratibha Sharma is a Senior Associate in the Business Law Practice Group of Vancouver, B.C.-based Clark Wilson LLP. Visit Clark Wilson at www.cwilson.com.