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Do you conduct criminal record checks? Should you?

Do you conduct criminal record checks? Should you?

Adam Gorley, Editor, HRinfodesk, published by First Reference, October 2013

Criminal record checks are often in the news, and the federal government was part of that news with recent changes to pardons (now called “record suspensions”) and a program that encourages employers to hire offenders. So we thought it would be a good time to ask our readers, “Does your organization conduct criminal record checks on potential candidates?” Of the 315 people who responded, 36.5 percent (115) said they use criminal background checks and 42 percent (133) said they don't. Another 21.2 percent weren't sure.

Employers are increasingly looking to police record checks to inform their hiring decisions. Not surprisingly, at the same time, individuals are increasingly complaining about information the police and other sources disclose in record checks, as well as discrimination based on criminal records.

No doubt a criminal record check can provide a valuable look at a job candidate's past. Indeed, checks are required for certain jobs, particularly working with vulnerable persons. But improper use of the information can easily lead to violations of human rights and privacy legislation.

What are criminal records?

A criminal record is a piece of information about an individual that relates to a criminal act, in the hands of a police agency. Among local, regional and federal police, this information can include offences that resulted in conviction, discharge or pardon; outstanding charges, warrants, judicial orders, peace bonds, probation and prohibition orders; family court restraining orders; criminal charges that have been stayed, withdrawn and dismissed; as well as other contact with police. Court documents are another source of information about a person's confrontations with the law.

Employers need to understand that a criminal record lacks crucial contextual information. Records may include false or frivolous charges, as well as inaccuracies. Before judging an applicant based solely on the result of a record check, employers should discuss the record with the applicant. This is a matter of human rights, not to mention decency.

What are criminal record checks?

A criminal record check is a query of various databases for information relating to criminal convictions. Employers may request criminal record checks from job applicants, but it is the applicant who must obtain the check. In some jurisdictions, the employer must bear the cost of the check.

Applicants will usually go through a third-party agent, which will take care of the paperwork. Before the agent can request the search of records, applicants must declare any convictions for federal offences (not including pardoned, discharged and youth convictions) and give informed consent.

There are three general types of record check:

  • Name-based criminal record verifications
     
  • Fingerprint-based criminal record verifications
     
  • Police information checks

There are also vulnerable sector name- and fingerprint-based checks. These have somewhat different criteria and can provide different results.

Name-based verifications are preliminary queries of the Canadian Police Information Centre's (CPIC) identification databank, one of four databases managed by the Royal Canadian Mounted Police. These verifications will provide one of three results:

  • Negative, meaning the search found no records that matched the applicant's name and date of birth
     
  • Confirmation of a criminal record, meaning the search found a possible match between the applicant's information and a registered criminal record (but not a pardoned sex offender record)
     
  • Incomplete, meaning the search found: A criminal record that matches the applicant's information but does not match the information the applicant declared, or in the case of a vulnerable sector check, the possibility of pardoned sex offender records

None of these results offers positive verification of a criminal record. Only fingerprint-based searches can provide certified criminal records.

Fingerprint-based verifications query the same records as name-based searches but provide an actual list of the applicant's convictions and, if authorized, non-convictions. A vulnerable sector check will also list sexual offence convictions that have been pardoned (if authorized). If there are no records, the search will return nothing. A name-based search must come before fingerprint-based verification.

Police checks include broad police information checks for vulnerable sector organizations and job applicants, and narrow police criminal record checks.

Police information checks look at a comprehensive set of records that includes three of CPIC's databanks-identification, investigative and intelligence-and the local police agency's records. These checks may also include the records of courts and other police agencies. These additional sources can include information on convictions and non-convictions that is not available with fingerprint-base verifications. Police information checks must take place in conjunction with a name- or fingerprint-based vulnerable sector verification.

Police criminal record checks query the local police agency's records for conviction information. Where such information exists, the search will produce a list of offence convictions. This type of check does not need to occur in conjunction with a name- or fingerprint-based verification.

What are the legal problems with criminal record checks?

Criminal record checks facilitate discrimination, privacy breaches and the spread of inaccurate information.

Depending on the jurisdiction, employers may base a decision to hire on a job applicant's record of offences-the law permits them to discriminate against individuals with criminal convictions.

The Canadian Human Rights Act prohibits employers under federal jurisdiction from discriminating against applicants who have been convicted of a crime but received a pardon (now called a record suspension).

Under British Columbia's Human Rights Code, employers and others “must not discriminate against a person regarding employment or any term of employment because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or intended employment of that person.” The Code exempts jobs if there is a reasonable and bona fide justification to discriminate based on a person's record of offences, for example, employment in the vulnerable sector.

Manitoba's Human Rights Code states that criminal conduct does not qualify as a characteristic protected from discrimination. However, because convicts qualify as a historically disadvantaged group that is the subject of negative stereotypes, the province's Human Rights Commission will accept complaints of discrimination on the basis of a criminal record.

Newfoundland and Labrador's Human Rights Act doesn't include record of offences among its prohibited grounds of discrimination. However, the Act nonetheless states that employers or others many not “refuse to employ or continue to employ or otherwise discriminate against a person in regard to employment or a term of employment…because of the conviction for an offence that is unrelated to the employment of the person.

The Northwest Territories' and Nunavut's Human Rights Acts prohibit discrimination in employment against persons based on convictions that have been pardoned.

Ontario's Human Rights Code prohibits employers and others from discriminating against or harassing a person on the basis of the person's “record of offences,” meaning pardoned federal offences or any provincial offences. The Code exempts jobs if there is a reasonable and bona fide justification to discriminate based on a person's record of offences, for example, employment in the vulnerable sector.

Prince Edward Island's Human Rights Act includes the same prohibition against discrimination as BC's Code.

Under Quebec's Charter of Human Rights and Freedoms, employers may not “dismiss, refuse to hire or otherwise penalize a person in employment owing to the mere fact that the person was convicted of a penal or criminal offence, if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence.”

Yukon's Human Rights Act includes among its prohibited grounds of discrimination “criminal charges or criminal record”. However, the Act does permit employers to discriminate on this ground when a job applicant has a criminal record or charges against them that are “relevant to the employment” or when the employer otherwise has reasonable cause to avoid hiring such a person.

Human rights legislation in Alberta, Saskatchewan, Manitoba, New Brunswick and Nova Scotia makes no mention of criminal records. These jurisdictions may tacitly permit discrimination against persons with criminal records, but employers should nonetheless step carefully when faced with such a prospect.

Regardless of jurisdiction, a person with a criminal record may also qualify for protection under another prohibited ground of discrimination, such as race, ethnicity, place of origin, disability or social condition. Also, an employer's conduct need not be intentional to be discriminatory. In other words, an employer that chooses not to hire an applicant based on the person's criminal record (where the law permits) might still face a charge of discrimination based on a different ground.

It is also possible that a record contains inaccurate information or refers to a different person. Clearly it would be unfair to decide not to hire someone based on false information.

For these reasons, it is probably a good idea to avoid basing hiring decisions on criminal records unless a clean record is a bona fide standard required by the job. Employers can follow the Meiorin test to determine if there is a bona fide occupational requirement (BFOR). Ask yourself:

    • Do you require candidates to have a clean record for a purpose rationally connected to the performance of the job?
       
    • Do you believe in good faith that a clean criminal record is necessary to fulfil a legitimate work-related purpose?
       
    • Is a clean record reasonably necessary to accomplish that legitimate purpose? (Put another way, could you accommodate a candidate who does not have a clean record without enduring undue hardship?)
       

“Accordingly,” Kate McNeill-Keller, associate at McCarthy Tetrault, points out:

“in order to determine whether it has grounds to deny employment on the basis of a criminal record check, an employer must have sufficient, specific information with respect to whether any such record exists, what the nature of the offences contained on that record are, whether they have been pardoned, and how such a record might impact the employee's ability to perform the job in question.”

Employers that want to avoid hiring a person because of a criminal record must base that decision on accurate information.

Then there are privacy questions. Except for vulnerable sector checks, police agencies don't give record verification reports directly to employers. The record goes to the job applicant who may have an opportunity to appeal. But once the applicant gives the information to the employer, the employer must ensure that it remains private and is destroyed once it is no longer needed.

Moreover, British Columbia's Privacy Commissioner recently reported that criminal record checks routinely give out more personal information than is necessary. The commissioner recommends that checks omit information unrelated to job requirements and duties, and also that employers have criminal record check and privacy policies in place to protect the information and limit the possibility of such sensitive information being seen by unauthorized persons.

McNeill-Keller offers these tips:

  • Take appropriate steps to confirm the existence of a criminal conviction, and if one exists, whether it was pardoned
     
  • Assess the details of that conviction before making any determination as to the suitability of a prospective employee
     
  • Ensure that any third-party screening service providers used for background checks are party to authorized agreements with CPIC agencies
     
  • Where a CPIC check result states that a search "could not be completed," ask the prospective employee directly about the report, whether they have a criminal record and the nature of that record
     
  • Instruct the prospective employee to verify their response by attending at their local police headquarters and having the police run a national criminal records check, and then submitting the report to the appropriate contact person responsible for hiring decisions
     
  • If criminal record checks are a critical part of your hiring process, consider building in additional time to the hiring cycle to allow for fingerprint verification, or requiring that all candidates provide confirmation of a clear criminal record as part of the job application process
     
  • Ensure that the individual responsible for hiring is trained and familiar with both the CPIC process and the RCMP's Interim Policy Statement

Are criminal record checks worth the trouble?

Besides those employers who are required by law to conduct criminal background verifications on potential employees, there are certainly reasons why an employer would want to peek at candidates' past involvement with the law. Employers must take reasonable steps to protect their workers from harm, so some might consider it reasonable to want to know if a job applicant is a violent offender. Employers also have the responsibility of protecting their assets, and they may very well want to know if prospects for fiduciary roles have theft or fraud in their past.

At the same time, employers should avoid stigmatizing individuals with criminal records by assuming they are unfit for the workplace. Not only is this socially inappropriate, but it might be bad for business. A person who has been convicted of an offence but has paid her or his duty is not necessarily damaged goods. In fact, offenders are less likely to re-offend when they have social supports such as steady work. In addition, many convicts learn valuable social and work-related skills or obtain various certifications while incarcerated.



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