Canadian HR Reporter

FEATURES BACKGROUND SCREENING B ackground screening job candi- dates can be an important part of an employer's recruitment process, helping to identify the best-qualifi ed can- didates and to manage what can be sig- nifi cant risks associated with a bad hiring decision. ere are several diff erent types of back- ground checks that are generally permis- sible in Canada and the type of checks an employer may wish to consider will depend on the nature of the position for which the candidate is being considered. Most widely used are those that relate to the educational, employment, criminal and credit history of candidates. Employers are understandably eager to learn as much about a candidate as possible, however, they must tread carefully. An im- properly conducted background check (or a properly conducted one where information obtained is improperly used or disclosed) can expose an employer to liability. It is crit- ical, therefore, that any background check is conducted in accordance with applicable provincial law. Federally regulated employ- ers must ensure compliance with federal law. Both privacy and human rights legisla- tion, discussed here in relation to provincial law, exist at the federal level as well. While the provisions may diff er, legisla- tion relating to privacy is common among the provinces, and human rights legislation ubiquitous. Both impose important limita- tions on background checking, with respect to how checks are conducted and how the information collected is used and handled. e majority of provinces (all save Que- bec and New Brunswick) have enacted credit/consumer reporting legislation applicable to credit checks that impose, among other things, notice or consent requirements if a credit check is being conducted. British Columbia, Alberta, Manitoba and Quebec have enacted comprehensive privacy legislation regulating the collection, use and disclosure of personal information in the private sector. Since eff ectively all information obtained about a candidate through background checks is "personal information" under the various statutes, employers must be alert to the privacy leg- islation in force in the province. Every province has enacted human rights legislation that prohibits discrimination in employment based on specifi ed prohibited grounds. Human rights legislation may limit an employer's ability to use informa- tion collected during a background check when making employment decisions if that information relates to a prohibited ground of discrimination. For example, some juris- dictions prohibit discrimination based on certain criminal convictions. Notable features of each province's ap- proach to privacy and human rights as they relate to background checking include the following: British Columbia: An employer may, without a candidate's consent, collect per- sonal information if the collection is "rea- sonable for the purpose of establishing… an employment relationship." However, before doing so, the employer must notify the candidate. Human rights legislation prohibits an employer from refusing to hire a candidate on the ground that she was con- victed of a criminal or summary conviction off ence if that off ence is "unrelated" to the employment. Alberta: Much like B.C., an employer may, without a candidate's consent, collect personal information if it is reasonable for the purpose of establishing an employment relationship. e employer, however, must notify the candidate it will be collecting such information before it does so. An em- ployer may refuse to hire a candidate be- cause he has a criminal record, even if the off ence is entirely unrelated to the position for which the candidate is applying. Saskatchewan: Employers are not re- stricted by private sector privacy legisla- tion. Even if an off ence is entirely unrelated to the position being applied for, an em- ployer may refuse to hire a candidate with a criminal record. Manitoba: An employer may not collect personal information about a candidate without the candidate's consent. Further- more, certain information must be exclud- ed from any report, such as adverse factual or investigative information more than six years old. Human rights legislation does not prohibit an employer from refusing to hire a candidate because she has a criminal record. is is true even if the off ence is un- related to the intended employment. Ontario: Background checks are not re- stricted by private sector privacy legislation and an employer may refuse to hire a candi- date convicted of a criminal off ence unless he received a pardon (in which case the em- ployer may not refuse to hire the candidate solely on the basis of the conviction). Quebec: An employer may only collect personal information from a candidate directly, unless the candidate consents to collection from third parties. at said, an employer may collect third party informa- tion without a candidate's consent if the employer has a "serious and legitimate" reason and certain conditions are met. An employer may not refuse to hire a candidate convicted of a penal or criminal off ence if the off ence is "in no way connected" with the employment or if a pardon was granted. New Brunswick, Nova Scotia, New- foundland and Labrador: An employer is not restricted by private sector privacy legislation when conducting background checks and human rights legislation does not prevent an employer from refusing to hire a candidate with a criminal record, even if the off ence is unrelated to the in- tended employment. Prince Edward Island: An employer is not restricted by private sector privacy legislation when conducting background checks, but an employer may not discrimi- nate against a person because she has been convicted of a criminal or summary convic- tion off ence if the off ence is unrelated to the intended employment. No matter the province, there are certain best practices recommended: • Perform background checks only after a conditional off er of employment has been made and accepted. is helps protect an employer against allegations that informa- tion relating to characteristics protected under human rights legislation improperly infl uenced the hiring process. • Collect only information reasonably nec- essary in order to assess a candidate's ap- plication. For example, if the employee is not entrusted with cash or fi nancial re- sponsibilities, a credit check may not be necessary. • Always ensure the confi dentiality of the information obtained, sharing it only among those individuals directly involved in the hiring process. Employers should consider developing a background screening policy, developed in accordance with applicable provincial law. is will allow the employer to take advantage of the insights into a candidate's history that background screening allows, while minimizing potential liability to the employer related to the collection, use and disclosure of the information obtained. Michael Howcroft is a partner at Blakes in Van- couver and Noemi Blasutta is an articling stu- dent at Blakes in Toronto. Employers should consider developing a background screening policy, developed in accordance with applicable provincial law. What do employers need to know? What do employers need to know? A province-by-province look at requirements, legal considerations By Michael Howcroft and Noemi Blasutta

• Cover