Can I ask an employee about their criminal history?

Employment lawyer weighs in on legalities – and fighting stigmas – in hiring the formerly incarcerated

Can I ask an employee about their criminal history?

Earlier this month, the Ontario government announced its plan to invest $160 million in the Skills Development Fund (SDF), aimed at helping people on social assistance and those with criminal records find work.

Not only could this investment help solve Canada’s ongoing labour shortage, it’s also a step in the right direction in de-stigmatizing candidates who may have been incarcerated.

According to a study from Public Safety Canada and the Correctional Service, formerly incarcerated people have a lot harder time gaining employment -  and when they do, they’re often subjected to lower wages.

The report, released in 2021, found that just 50% of formerly incarcerated people who filed tax forms were currently employed between 1999 and 2001 – compared to the Canadian average of 69%. What’s more, those who were working earned an average of $14,000 – far below the average of $39,580.

Does a criminal record matter in the workplace?

Now, with Canada facing a worrying labour shortage, many employers are eyeing this untapped, and often super loyal, talent pool. So, what are some underlying legal questions that employers need to consider when hiring someone with a criminal record?

“I think the first thing an employer should ask is ‘Does it matter?’” says Mike MacLellan, partner at employment law firm CCPartners. “In most lines of work, an employee’s criminal past doesn’t make them unsuitable for the job. So does it matter to the employer whether they hire a person with a criminal record if they are, in all other respects, appropriate for the position?”

The second consideration is whether a hiring decision based on a criminal record would violate applicable human rights legislation. 

“In Ontario, for example, the Human Rights Code prohibits discrimination in employment on the basis of ‘record of offences’,” adds MacLellan. “Record of offences is defined to mean a conviction for an offence in respect of which a pardon has been granted and has not been revoked, or an offence in respect of a provincial enactment.”

Can I ask an employee about their criminal history?

For candidates with criminal records, the idea that an employer may ask about their past can be anxiety inducing – often making them give up on the chances of finding employment. However, in some ways that fear is unfounded.

According to a report from Working Chance, twice as many managers (45%) would hypothetically recruit a formerly incarcerated individual in 2022 – up from just 25% in 2010. With attitudes seemingly changing, employers should be making sure their recruiting tactics – and interview questions – are in line with the law.

For example, can an HR manager ask a candidate or an employee about their criminal record?

“In exceptional circumstances, it may be permissible or even responsible to ask an employee whether they have a criminal history that could go to the core of their duties in the prospective job,” says MacLellan. 

“For example, someone being considered for a position as a transit operator will normally be required to have a clean record under the Highway Traffic Act. Similarly, a candidate for an Early Childhood Educator job would be required to show a clean criminal record with respect to their relations with vulnerable people, including children. 

“These kind of exceptions would constitute ‘bona fide occupational requirements’ for which otherwise discriminatory reliance on criminal history to deny a candidate from a job will be reasonable. Without these kind of clear circumstances, an employer cannot base their hiring decisions on a candidate’s criminal record.”

Can I fire an employee over a criminal record?

On the flip side of this question, what happens if you uncover that an employee has an undisclosed criminal record? Can you fire someone over their criminal history? Do employers have a right to terminate the employment contract?

“The fact that an employee has a criminal history in and of itself will normally not permit an employer to terminate employment,” says MacLellan. “If an offence is committed during employment that goes to the core of the employment relationship, or that unduly affects the employer’s business reputation, then an employer would be permitted to terminate the employee.”

Similarly, if an employee is held in custody and sentenced to prison, their employer may not be required to hold a job for them until they are released.

“An employee who misrepresented or concealed their criminal history may have their employment terminated if the criminal record is directly relevant to the position,” he tells HRD.

“Remember, employers in Canada must provide notice of termination of employment unless they have just cause to terminate, and just cause terminations are generally reserved for particularly egregious and job-related misconduct.”

However, not all criminal records are created equally. After all, there’s a big difference between hiring someone accused of a petty theft and hiring a serial killer – these types of crime, and how they interplay with the sector of employment, do matter.

 “The only time a criminal record should play a role in disqualifying an employee from a job application is where the type of crime is directly and rationally connected to employment,” says MacLellan. “A person convicted of defrauding the elderly should not be hired into a retirement home. A person convicted of selling opioids should not be hired into a pharmacy.”

De-stigmatizing formerly incarcerated candidates

Formerly incarcerated individuals who gain steady work are nine percent less likely to reoffend, with 86% of employers of ex-offenders rating them as good at their job. Despite this, only 17% of formerly incarcerated people manage to gain a job within a year of release.

A big reason for his seems to be an employer’s worry about whether or not they’re liable if an employee reoffends when they’re working for their organization.

“An employer is generally not responsible for an employee’s misconduct,” says MacLellan. “This is particularly the case where the employee commits a criminal offence off-duty. Perhaps in an exceptional case — if the employer knowingly hires a person into a position where, due to the employee’s criminal history, there is an apparent risk to the health and safety of others in the workplace, to customers, clients, or people under their care — the employer’s recklessness or wilful blindness could create civil liability.”

‘This idea that prison is a holiday camp or a free ride – it’s complete nonsense’

Finally - people with criminal history are notably more loyal and hard working when in a job, according to research from Refreshing a Career. Not only that, but in a recent interview with HRD, Phil Martin, founder of Ex-Seed, a recruitment consultancy to help former prisoners and people in the community with criminal records, says that they’ll go above and beyond for their new employer.

And, as someone who was formerly incarcerated himself, Martin should know.

“This idea that prison is a holiday camp or a free ride – it’s complete nonsense,” he says. “The majority of people in prison don't want to go back there, they don't want to reoffend. They want to work - and if they're given an opportunity, then they will work really hard and loyally for the company that employs them.”

So, how can employers help get rid of the stigma surrounding hiring people with past convictions? For MacLellan, he believes it starts with getting involved with your local community.

“I am proud to have formerly been a member of the board of directors of St. Leonard’s Place Peel, which is a fantastic organization that helps men transition from the criminal justice system,” he says. “One way in which their residents acclimate to their new lives as productive members of a community is by obtaining gainful employment. 

“When employers successfully employ workers with criminal records, this will only help build confidence in giving a fair opportunity to similarly-situated job applicants.”

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