Canadian HR Reporter

CANADIAN HR REPORTER CANADIAN HR REPORTER June 2, 2014 June 2, 2014 6 NEWS NEWS CPASource.com CPAs are Canada's most knowledgeable, skilled and respected accounting and business professionals. And this is where to find them. HIRE A PRO. to the release of that information to their prospective employer," she said. "What I've said in my report is that's not true consent. It's a near fi ction of consent because individuals really don't have a choice. If they want to obtain em- ployment and if the prospective employer requires a background check, they're going to obtain the information." Legal, employer concerns e report gives a strong indica- tion of how the commissioner would approach any privacy com- plaints in this area, according to Colin Gibson, a partner at Harris & Company in Vancouver. But it's important to note many of the report's areas of concern have existing human rights pro- tections under the B.C. Human Rights Code, said Gibson. "(For example), an employer can't refuse to hire or discriminate against a person based on a men- tal disability, unless there's a bona fi de occupational requirement." Also under the code, an em- ployer can't refuse to hire or dis- criminate against a prospective employee because of criminal convictions unrelated to employ- ment, he said. "(Employers should) consider very carefully how they use the in- formation that they gain through these checks, in regards to both prospective employees and exist- ing employees," he said. "And they need to be prepared to justify the reasonableness of what they're doing, both under privacy legislation and under hu- man rights legislation." At the same time, some of the report's recommendations raise potential concerns for employers, who have an obligation to provide a safe workplace, said Gibson. One recommendation — for employers to only access convic- tion information that is relevant to the position (for positions outside the vulnerable sector) — could potentially be problematic, he said. "Often, the employer is going to have to see the full list of convic- tions to determine which of those are relevant or potentially relevant to the prospective employment," said Gibson, citing, for example, a position that involves handling large amounts of cash. If the em- ployer is only informed of theft or fraud-related convictions, does that mean other off ences might not also be relevant? "What about drug offences? e circumstances where… em- ployees are stealing large sums of money often stem from an employee who has some kind of a drug problem or is involved in the drug community. So seeing that kind of a track record of of- fences, you could see how that could be potentially relevant in the circumstances." But employers should also think carefully about which posi- tions these background checks are actually relevant for, he said. " ere's going to be a lot of jobs where it isn't appropriate to request conviction information. " Mental health and the right to privacy e report's most important rec- ommendations, though, centre around mental health information and non-conviction information, said Denham. " e most important change is that there should be a prohibition against the disclosure of mental health information in the employ- ment setting. So that should be off the table even for people who are working in the vulnerable sector," she said. "Secondly, outside of employ- ees who are working with children or vulnerable adults, non-convic- tion information should never be released." e presence of mental health information in police informa- tion checks — and, as a result, in pre-employment screening — is a striking example of the stigma around mental illness, according to Jonathan Morris, director of public policy at the Canadian Mental Health Asso- ciation (CMHA), B.C. division, in Vancouver. Some may feel human rights protections are enough to pre- vent discrimination if sensitive mental health information is revealed in the hiring process — but, in practice, this kind of dis- crimination can be diffi cult to pin down, said Morris. "It's a hard thing to prove. But I don't think we're at a point where people are freely sharing that in- formation without fear that there might be consequences," he said. "I would worry and hope that this doesn't happen, but I imagine it might... So that has quite an im- pact upon people, especially when livelihood and educational poten- tial (could be impacted)." Denham agreed this sort of dis- crimination may take place under the radar. "If you were an employer and you had three candidates and one of them had a clear check and somebody had a suicide at- tempt on their fi le or a complaint by a neighbour or some other issue, then I think most employers would choose the candidate who had a clear check," she said. The B.C. branch of CMHA "wholehear te dly applauds" the report's recommendations around preventing mental health information from being shared in both general background checks and vulnerable sector checks, said Morris. " at's a really important thing from an HR perspective. We would argue that if checks (with mental health disclosures) remain for the vulnerable sector, it implies that people with a mental health problem can't work with vulner- able sectors, and there's an inad- vertent stigma attached there." Overall, Denham hopes the report will serve as a catalyst for awareness — and for change. "Similar problems exist across the country. I think B.C. is prob- ably an outlier from the perspec- tive of the breadth of these back- ground checks. But Ontario is looking at this issue, Alberta is looking at this issue, and employ- ers that are operating in both the public sector and the private sec- tor have privacy obligations, and they need to look at the system," she said. "It's a warning bell that should go off for employers to do some searching and fi nd out what kind of background checks are being conducted by police services be- fore they send prospective em- ployees off to provide records." Employers should take critical look at screening Employers should take critical look at screening " ere should be a prohibition against disclosure of mental health information... at should be off the table even for people working in the vulnerable sector." PRIVACY < pg. 1

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