Background checks: understanding your boundaries as an employer

Don't get caught out being overzealous in the screening process

Background checks: understanding your boundaries as an employer

Asking for background checks that’re unnecessary could be considered an invasion of employee privacy. Speaking with Mike MacLellan, partner at Crawford Chondon & Partners LLP, he says it’s all about knowing your boundaries as an employer.

“You need to ensure you’re asking for the right kind of background check. For instance, if you have a landscaping business and you’re hiring a gardener, you’re probably not going to need a full criminal check. The general guiding principle is to infringe on privacy as minimally as possible.”

Read more: Is it time for small businesses to adopt corporate tactics?

Employers could be accused of an intrusion of privacy if they opt to dig too deep into a candidates past. Anything which reveals sensitive personal information that's not relevant to the job shouldn't be a requirement for those checks. Employers have to obtain the candidate’s written consent to the checks and go on to inform what type of information the background checks will cover. But what’re the different types of background checks on offer to Canadian employers?

  1. Police Information Checks (PIC)

These checks bring up past convictions, discharged and outstanding charges on the candidate.

  1. Criminal record check (CRC)

Employers have to tread carefully when asking for a CRC, as rarely are they necessary. Employers also cannot discriminate against an applicant because of their criminal past – unless, of course, they’re working in specific sectors or with vulnerable people.

  1. Vulnerable Sector Checks (VSC)

These are the most comprehensive checks that can be performed, looking at any history of sexual offences as well as an overview of both CRCs and PICs. Most often these checks are asked of people in roles of trust where they have access to vulnerable people. Tread carefully here, as it’s an offense to conduct a VSC if the candidate doesn’t meet the requirements of the CRC.

Fired over a bad check?

But what if you’ve already hired the employee? It’s natural to be curious about your teams’ histories – but can you request they undergo a background check once they’re on the payroll?

“It’d be more of an issue if you refuse to hire somebody or refuse to continue to employ somebody, because they won't submit to an unnecessary check,” says MacLellan. “If you have a current employee and you decide to do a criminal record check that's not appropriate, the employee refuses and the employer terminates them, that would be a wrongful termination. All the regular consequences, obligations, and liabilities would follow.”

Compliance in background screening

With remote and hybrid models gaining popularity, background screening in remote work has become more difficult. Ever-evolving privacy laws mean that HR leaders need to continuously upskill in order to remain compliant. 

“When it comes to background screening in Canada, employers struggle with balancing business needs and risk mitigation with individual privacy and human rights,” says Mark Sward, global head of privacy, at Sterling Backcheck.

Read more: Hybrid work: How to engage a multi-generational workforce

“These challenges can be overcome by documenting clear and well justified screening policies, with safeguards in place to ensure Canadian privacy principles are integrated into the process. Background screening in Canada will become more electronic, with the RCMP and employers moving to much more sophisticated digital identity verification and moving away from looking at physical ID cards.”

But this shouldn’t come as too much of a surprise for employers. After all, the Working for Workers Act has similarly delineated that all electronic monitoring of employees should be declared beforehand – and “overenthusiastic” employers have been cautioned against snooping.

Remember, HR - candidates also have privacy rights, even before you’ve offered them a job. Don’t end up on the receiving end of a lawsuit because you’ve been overzealous with your screening.

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