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April 28, 2015

Employment Background Checks Primer

Author Todd Weisberg

It has become common practice for many employers to conduct a variety of background checks with respect to prospective employees. It is often prudent for employers to conduct such checks because they are attempting to assess the character and trustworthiness of job applicants who are, for all intents and purposes, strangers. However, many types of background checks may, if conducted improperly or at the wrong time, run afoul of privacy and human rights laws.

Federally regulated employers (such as banks) across Canada, including in Ontario, are governed by PIPEDA, which is a privacy statute that includes rules regarding the types of information that can be obtained by employers. Ontario does not have a similar law pertaining to provincially regulated private sector employers (which constitute the vast majority of Ontario’s employers), so the primary legal concerns for provincially regulated private sector Ontario employers arise out of the Ontario Human Rights Code (the “Code”). The privacy considerations arising out of PIPEDA for federally regulated employers are beyond the scope of this post, which focuses only on the legal implications of background checks for provincially regulated private sector Ontario employers.

Criminal Record Checks

There are three types of criminal record checks that are most commonly performed: Criminal Record Checks (“CRCs”), Police Information Checks (“PICs”) and Vulnerable Sector Checks (“VSCs”).

CRCs and PICs are the standard criminal checks that are conducted for applicants to positions that do not require VSCs. CRCs disclose criminal and summary (provincial) convictions. PICs disclose, in addition to convictions, outstanding charges and charges for which the individual received a discharge. VSCs are significantly more thorough than both CRCs and PICs, and disclose such information as whether the individual has been convicted of a sexual offence for which he or she has received a pardon. VSCs are conducted for prospective applicants to positions involving trust or authority over vulnerable persons such as children, the elderly and the developmentally disabled. Applicants to certain positions including some involving work with the developmentally disabled and the elderly in long-term care homes are in fact required by statute to undergo VSCs in order to become employed in such positions.

CRCs, PICs and VSCs require written authorization by applicants before being conducted. In order for any type of criminal check to be conducted, applicants are required to provide information including gender and date of birth. The Code provides that employers generally may not ask prospective employees about protected grounds of discrimination such as age, sex and place of origin prior to making an offer of employment. As such, it is recommended that employers refrain from conducting any type of criminal check until the applicant has been provided a conditional offer of employment (conditional upon the results of the check) in order to avoid obtaining information that would place an employer in violation of the Code.

The Code further provides that employers may not refuse to employ an individual because such individual has been convicted of a summary offence (such as a minor driving-related conviction) or because he or she has been convicted of a criminal offence for which he or she has obtained a pardon. Accordingly, a decision not to employ an individual because of that individual’s pardoned criminal conviction or summary offence will be found to be discriminatory under the Code unless it is a bona fide occupational requirement (“BFOR”) of the position that the employee not have been convicted of a summary offence or criminal offence for which a pardon has been granted. In order to demonstrate that an otherwise discriminatory requirement for employment is a BFOR, an employer must satisfy a three-part test: (a) there must be a rational connection between the BFOR and the performance of the job; (b) the BFOR must have been established with an honest and good faith belief that it is necessary to fulfil a legitimate work-related purpose; and (c) the BFOR must be reasonably necessary to meet that purpose.

Credit Checks

Ontario employers may conduct credit checks of prospective employees, and may refuse to hire employees as a result of credit history. In order to conduct a credit check, however, an employer would require the applicant’s date of birth. As such, a credit check should only be conducted once a conditional offer of employment has been provided, as the employer would likely otherwise violate the Code by learning the employee’s date of birth. Practically, only employers hiring for positions in which the employees will have the opportunity to commit theft or fraud should consider checking applicants’ credit.

Employers are required by statute to provide written notice to prospective employees that they will be conducting a credit check. Ontario’s courts also recently recognized a common law tort of invasion of privacy. In order to ensure that such new privacy law is not violated, it would be prudent for employers conducting credit checks of prospective employees to first obtain their written consent.

Education Checks

There are no absolute legal restrictions to employers contacting applicants’ colleges/universities to verify education information listed on resumes or transcripts. If an applicant has not voluntarily provided a school name or year of graduation, however, the employer should consider waiting to ask for the education information required to conduct education checks until after making a conditional offer of employment, as such information may divulge information pertaining to protected grounds of discrimination such as citizenship/place of origin (if the applicant’s school is in a foreign country) or age (as year of graduation often provides insight into the applicant’s age). As previously stated, asking for such information prior to making a conditional offer is a violation of the Code.

Driver’s Record Checks

Anyone in Ontario, including prospective employers, may obtain an individual’s driver’s record; all that is required to obtain a driving record is the individual’s name, address and driver’s license number. A driver’s record shows driver and license details as well as any driving-related criminal or summary convictions in the previous three (3) years. As with criminal and credit checks, a driver’s record check should only be conducted after a conditional offer of employment has been made, as a driver’s record contains information pertaining to protected grounds of employment including age and summary convictions, and obtaining such information prior to making a conditional offer may be discriminatory under the Code. Further, employers may only refuse to employ individuals who have been convicted of summary driving offences or criminal driving offences for which they have been granted a pardon if a clean driving record is a BFOR; if a clean record is not a BFOR, refusing to hire on that basis constitutes discrimination. Positions for which a clean driving record is a BFOR may include trucking or sales jobs.

Employment/Reference Checks

There are typically no legal restrictions to Ontario employers contacting applicants’ past employers or other references at any time during the hiring process.

Social Media Checks

Employers in Ontario may check applicants’ public social media accounts such as LinkedIn, Facebook, Twitter and Instagram at any time during the hiring process.

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