Canadian HR Reporter

Canadian HR RepoRteR September 8, 2014 10 News significant success — more than 45 cities and counties, including New York City, Boston, Chicago, Detroit and San Francisco, have removed questions around crim- inal convictions from employ- ment applications. Seven states have changed the hiring practices in public employment to reduce discrimination around convic- tion histories, according to the campaign's website. But the laws around the hiring process and conviction histories differ greatly between the United States and Canada, said Stuart Rudner, founding partner at Rud- ner MacDonald in Toronto. As a result, the Ban the Box movement is unlikely to expand into Canada because hiring practices are quite different and that titular checkbox on the application form is not as pervasive here. "at being said, many Cana- dian employers do adopt policies requiring criminal background checks of all applicants, regard- less of the position in question," he said — so there are still some complex issues to consider. Impact on hiring Criminal conviction information inarguably has a significant im- pact on the hiring process, said Catherine Latimer, executive di- rector of the John Howard Society in Ottawa. "Many employers have a policy not to hire someone with a crimi- nal record so, in many cases, it's a huge, huge barrier to finding employment. ey uniformly use police records as their screening tool, so this leaves a great number of people disenchanted about the whole jobseeking process. And those that enter the jobseeking process with a criminal record tend to be quite discouraged by it," she said. By automatically discounting those with a conviction history, employers run the risk of over- looking a significant talent base. "ere's a lot of people who have criminal records in Canada — I've heard estimates that it's one in 10 people have a criminal record — and if you look at the gender breakdown, it's about 20 per cent of men have criminal re- cords," she said. "is is a huge area where we as a society do ourselves a disservice by not encouraging fuller employ- ment of a lot of these people who are fully capable of working. e fact they have a criminal record in a certain area doesn't in any way detract from their (abilities) of being really highly skilled and excellent employees." Provincial differences Laws around asking for criminal conviction information in the re- cruitment process vary dramati- cally from province to province, said Jeffrey Mitchell, a partner at Dentons in Toronto. "In a lot of respects, the prov- inces are similar but when it comes to criminal convictions, the provinces are actually quite differ- ent in their approach," he said. "In Ontario, the main piece of legis- lation that you have to look at is the Ontario Human Rights Code. And that contains a definition of record of offences, which is a pro- hibited ground of discrimination. "When it comes to criminal of- fences, the definition of record of offences is quite narrow, because it only covers an offence where someone has received a pardon. So right now in Ontario, the only protection someone has when it comes to criminal convictions is protection against discrimination where a pardon has been granted." So if you have a conviction and a pardon has not been granted for it, employers can legally refuse to offer you the job on that basis alone, he said. "In Ontario right now, that doesn't have to be related to the position that the person is apply- ing for — it's just simply the fact that they've got a criminal con- viction and have not received a pardon." But for many, pardons can be difficult to get, said Latimer — the law recently changed to raise the cost of a record suspension to about $630. "Also, the backlog of applica- tions is huge," she said. "People can be waiting two years to have their application processed." Other provinces take a different approach, said Mitchell. "For example, in B.C. and Que- bec… generally, their legislation requires that there be a connec- tion between the conviction and the nature of the position. So the employer can ask the question but then has to prove — if there's a refusal to employ — that the criminal conviction was related to the nature of the position and, therefore, made it inappropriate for the person to be hired. So it's a connection test in B.C. and Que- bec, which is very different from Ontario," he said. "en, you move to Alberta and Saskatchewan and they don't have protection in their human rights legislation from discrimination on the basis of criminal convictions. So in those two provinces, the hu- man rights legislation doesn't deal with it at all." is hodgepodge of different provincial approaches makes it quite tricky for employers to cre- ate a common application form across Canada, he said. "I always advise that they've got to be really careful around crimi- nal convictions if they want to do that." Privacy legislation is another piece of the puzzle, said Rudner — one that also differs from juris- diction to jurisdiction. "However, where privacy legis- lation is in place, then employers will have to justify background checks such as criminal record checks, credit checks and other invasions into an applicant's pri- vacy. In some cases, they will be able to show that there is a legiti- mate need. In others, they will not," he said. Another interesting factor is that in Ontario, there's no pro- tection for people who have been charged with an offence but not convicted, said Mitchell. "e record of offences (pro- tection) only deals with convic- tions for which a pardon has been granted. So if you've been charged with an offence, there's no protec- tion — if the employer finds out you've been charged with the of- fence, they can take action and it's not a human rights basis of dis- crimination," he said. "The case law is quite clear. ere are several recent decisions of the Human Rights Tribunal of Ontario that say if you've just been accused or charges have been laid, you don't have protection." Best practices From a purely legal standpoint, if criminal record checks can be legally justified, they can be re- quested at any point in the hir- ing process, said Rudner. But that doesn't mean they should be. "e most prudent course of action is to only request them af- ter a conditional offer of employ- ment has been made. Obviously, the offer will be conditional upon satisfactory results of the checks in question," he said. "Adopting this approach will reduce the number of checks that are re- quired, as employers would only have to make inquiries relating to the chosen applicants." is course could also help em- ployers avoid a scenario where un- successful candidates allege they were denied the position because of their record of offences, he said. "If the employer does not even obtain information relating to the record of offences until after the successful candidate is chosen, then they can easily refute such an allegation by demonstrating that they were not aware of the record of offences at the time the decision was made." e hiring process can be a hu- man rights minefield, said Rudner, so it's generally wise to avoid col- lecting sensitive information if it's not necessary. "I often advise our corporate clients that they do not want to know any more than they have to about an applicant. By way of example, if they find out that an applicant has cancer and subse- quently make an offer of employ- ment to someone else, it would be open to the unsuccessful applicant to allege that they were not offered employment due to the fact that they have cancer. If the employer was unaware of that fact, and can show this, then it will be far easier to defend against such an allega- tion," he said. "Similarly, there is no good rea- son to conduct a criminal back- ground check too early in the process. To begin with, employers should assess whether a criminal background check is reasonably required at all for the position in question. If it is, they should be prepared to defend that need by demonstrating a bona fide occu- pational requirement." Employers should stop dis- counting those with a conviction history and instead be open to the skills and talents they can bring to the table, said Latimer. "Employers should look at some of the success stories, and they should be working with some of the agencies that will help with the integration of people into the workforce," she said. "There's no reason for them not to be looking at a potentially highly skilled group of workers, simply because they have a past criminal record." Expert Training for Human Resources Professionals At RT Workplace Training Inc., Learn practical, hands-on skills to manage workplace investigation and employment law problems from RT's employment lawyers and training experts. RT Training Curriculum October 9, 2014 in Toronto OHS Incident Investigation Training In this full-day workshop, we will discuss the importance of incident response and investigation, provide participants with a practical overview of when and how investigations should be conducted, and introduce basic investigation techniques. October 23, 2014 in Toronto Assessing Credibility and Understanding Bias This course has been designed for anyone who has ever investigated a set of allegations and struggled to make a finding at the end. Learn about the science of lie detection, find out which approaches work and which don't, and gain valuable tools to assist you in making decisions. November 18, 2014 in Toronto AODA Train the Trainer This interactive session will explain the new AODA training requirements, and will discuss the key elements that must be covered in your organization's training program, including: the definition of disability in the Human Rights Code; what is required to meet the Duty to Accommodate; and how the Code is enforced. December 2, 2014 in Toronto Interviewing Techniques and Difficult Witnesses Do you strive to be a more effective interviewer in your workplace investigations? After exploring many of the investigative interview techniques currently being utilized, participants will be provided with an interview model best suited to conducting internal workplace investigations. www.rubinthomlinson.com Tel: 416-847-1814 Copyright © 2014 Rubin Thomlinson, All rights reserved. RT LLP 20 Adelaide Street East, Suite 1104 Toronto ON M5C 2T6 Questions about our training courses or interested in having us create a customized session for your workplace? Email us at seminars@rubinthomlinson.com Protections differ dramatically among provinces BaN THe BoX < pg. 1

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