Canadian HR Reporter - Sample Issue

CANADIAN HR REPORTER APRIL 2018 INSIGHT 27 Criminal charges and convictions What exactly can an employer ask about a job candidate's police record? 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 ex- pressly 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 con- cerns that may arise if they make such inquiries. Human rights legislation in several Canadian jurisdictions prevents employers from dis- criminating on the basis of certain criminal charges or convictions. e level of protection varies de- pending on the specifi c language of the legislation. In British Columbia, New- foundland, Prince Edward Is- land, Quebec and the Yukon, an employer cannot discriminate against an employee because of a criminal conviction that is unre- lated to his employment. In Ontario, the prohibited ground of discrimination is "re- cord of offences." There is no human rights protection from discrimination on the basis of a criminal record in Alberta, Mani- toba, New Brunswick, Nova Sco- tia or Saskatchewan. Certain provinces also distin- guish 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 diff erent approach, even though the language of the Human Rights Code refers to convictions. In Clement v. Jackson, the BC Hu- man Rights Tribunal found that this protection also extends to criminal charges. In jurisdictions where an em- ployer is prohibited from dis- criminating based on criminal convictions that are unrelated to employment, an employer must inquire about the individual cir- cumstances of the criminal re- cord 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 Co- lumbia ruled that the following factors should be considered in determining whether a criminal conviction is related to employ- ment 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 effi ciently? • What were the circumstances of the charge and the particulars of the off ence 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 fi rm intention to rehabilitate herself? Practically, an employer may wish to wait until it is ready to of- fer a job candidate a position be- fore asking for a criminal record check. If an employer completes a criminal record check on all ap- plicants and discovers that one candidate has a protected crimi- nal record, the employer may fi nd itself exposed to a human rights complaint if it decides not to hire that person. Before requesting criminal re- cord checks, employers should also be mindful of the privacy legislation in their jurisdiction governing the collection and use of personal information. Gener- ally 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 require- ment 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 benefi ts gained. It may be rea- sonable 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 em- ployer to justify a criminal record check for a job applicant who is a stranger to the employer's or- ganization 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 diffi cult to estab- lish that it is reasonably neces- sary 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 signifi cantly diff erent responsibilities, and if a criminal record may be relevant to those new responsibilities. Several provinces have statutes that specifi cally require criminal record checks in specifi ed cir- cumstances. In British Colum- bia, for example, the Criminal Records Review Act requires cer- tain categories of organizations to ensure that all employees who work with, or have unsupervised access to, children or vulnerable adults, undergo criminal record checks. is requirement covers em- ployees such as teachers, health- care professionals, social workers and care facility employees. Job applicants who have been off ered 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 Har- ris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@harrisco.com. Looking for top talent can go over the top Are time-consuming online recruiting systems putting candidates off? I am a Chartered Professional in Human Re- sources (CPHR) with more than 14 years of progressive leadership experience. I have worked in a variety of diff erent industry groups and taught HR management and occupational health and safety. In 2017, I decided to venture out on my own and start my own business as an HR consultant. ere were lots of jobs online, so I applied to several HR consultant positions to do some contract work. And one thing I quickly dis- covered while applying to vari- ous jobs was that many of the newer online recruiting systems were incredibly verbose and time-consuming. It would often take me one or even two hours just to apply to one job, largely due to data fi elds being so over-populated. For in- stance, having force fi elds to enter information like what month and day I took a seminar in 1990 is a bit ridiculous. I am all for extrapolating data and I understand the concept of "What gets measured, gets man- aged." I also see the importance of HR metrics and the need to have quick and easier ways to do business. I know the time-consuming ef- fort it takes to weed through hun- dreds of resumés, and I too wel- come computer assistance with these tasks. However, when systems like these take one or two hours just to upload information details to ap- ply to one job, there is something seriously wrong. We have gone "over the top." How do these exhaustive ap- plication systems attract quality candidates? In my opinion, they don't. In- stead, professionals like me sim- ply say, "I'm not bothering." ey move on to a competitor who understands this, or an ex- ecutive recruiter who will do the work for them, or to another com- pany that has already realized that "easy apply" is in fact easier. After all, time is a valuable commodity and a limited resource. So, the question becomes: Are we actually losing our top talent because of this? I mean, if a per- son is good, he can and he will just go elsewhere. e goal of every human re- sources department is to attract top talent, and every position has a diff erent ingredient list as to what that is. Leadership positions, manage- ment positions, executive posi- tions and supervisory positions require not only extensive knowl- edge, skills and abilities, but also experience. is experience and knowledge may be accumulated over many years and it includes a rich, de- tailed work history and notewor- thy achievements. at is a lot of information and it's a lot of detail to upload. But is it reasonable to expect experienced candidates to spend this kind of time in an application process? I don't think it is. Keep in mind that in tight la- bour markets, candidates apply to several jobs to meet the lim- ited amount of available num- bers game. Is it reasonable for us to expect candidates to spend all this time applying to just one of these jobs? Most importantly, are we lim- iting our candidate pools because of this? If I, like so many others I know, just don't bother with these types of company sites, are we inadvertently fi ltering out experienced candidates from selection? Worse, are we filtering out people with real and desirable leadership qualities who could be applying to our companies? Today, more than ever, we need solid and experienced leaders to bring up our rising stars. Have we allowed our recruit- ment process to go over the top by relying on these verbose sys- tems, or handing over the hard work to a select group of execu- tive fi rms to choose our leaders — simply because they will do what we won't? We could be missing out on some really great, strong, inspir- ing leadership. Nadina M. Smith is chief HR strat- egist and president of Variable HR Consultants in Halifax. She can be reached at variablehrconsultants@ outlook.com. I am a Chartered Professional in Human Re- sources (CPHR) with more than 14 years of progressive leadership experience. I have worked in a variety of diff erent industry groups and taught HR management and Nadina Smith GUeST COMMeNTaRY It may be reasonable to conduct a criminal record check for positions of trust, or if the primary duties involve protecting the security of people. Colin Gibson TOUgHeST HR QUeSTiON If I, like so many others I know, just don't bother with these types of company sites, are we inadvertently fi ltering out experienced candidates?

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