What does an employer need to keep in mind when conducting reference checks?
Question: What does an employer need to keep in mind when conducting reference checks?
Answer: Under Canada’s new privacy laws, the principal rule to follow when obtaining or giving a reference is “get consent.” In all jurisdictions in Canada, an employment reference is considered “personal information” or “employee personal information.” Canadian privacy laws provide that the knowledge and consent of an individual are required when an organization, whether it be public or private, wants to collect, use or disclose personal information or employee personal information about that individual.
British Columbia, Alberta and Quebec have enacted specific provincial legislation respecting the protection of personal information.
The “Personal Information Protection” acts in those provinces have been deemed substantially similar to Canada’s Personal Information and Protection of Electronic Documents Act, which applies to the collection, use and disclosure of personal information in each of the remaining provinces and territories in Canada. Thus, in every jurisdiction in Canada, the rules respecting employment references are similar.
Employers should make sure they have the consent of the employee in question to either give a reference or obtain a reference.
Consent can be obtained verbally (and in some cases consent can even be implicit) but the best practice is to obtain written consent that is specific to the situation.
For example, an employer should obtain an employee’s consent to ask for information specifically about the employee’s former position, duties, responsibilities and job performance.
An example of an appropriately specific consent is: “I consent to the employer obtaining employment references from the following former employers: ____. I understand the employer will request information about my former position, duties and responsibilities and my job performance as it relates to those duties and responsibilities.”
When giving a reference (assuming you have the employee’s consent to do so), employers should keep in mind that one of the basic tenants of all Canadian privacy legislation: personal information that is collected, used or disclosed must be accurate.
This means any assessment you give of an employee should be based on substantive facts which can be supported by performance evaluations and attendance records.
In sum, knowledge, consent and accuracy are the keys to providing or obtaining employment references in this new era of privacy protection.
Brian Kenny is a partner with MacPherson Leslie and Tylerman LLP in Regina. He can be reached at (306) 347-8421 or [email protected].
Answer: Under Canada’s new privacy laws, the principal rule to follow when obtaining or giving a reference is “get consent.” In all jurisdictions in Canada, an employment reference is considered “personal information” or “employee personal information.” Canadian privacy laws provide that the knowledge and consent of an individual are required when an organization, whether it be public or private, wants to collect, use or disclose personal information or employee personal information about that individual.
British Columbia, Alberta and Quebec have enacted specific provincial legislation respecting the protection of personal information.
The “Personal Information Protection” acts in those provinces have been deemed substantially similar to Canada’s Personal Information and Protection of Electronic Documents Act, which applies to the collection, use and disclosure of personal information in each of the remaining provinces and territories in Canada. Thus, in every jurisdiction in Canada, the rules respecting employment references are similar.
Employers should make sure they have the consent of the employee in question to either give a reference or obtain a reference.
Consent can be obtained verbally (and in some cases consent can even be implicit) but the best practice is to obtain written consent that is specific to the situation.
For example, an employer should obtain an employee’s consent to ask for information specifically about the employee’s former position, duties, responsibilities and job performance.
An example of an appropriately specific consent is: “I consent to the employer obtaining employment references from the following former employers: ____. I understand the employer will request information about my former position, duties and responsibilities and my job performance as it relates to those duties and responsibilities.”
When giving a reference (assuming you have the employee’s consent to do so), employers should keep in mind that one of the basic tenants of all Canadian privacy legislation: personal information that is collected, used or disclosed must be accurate.
This means any assessment you give of an employee should be based on substantive facts which can be supported by performance evaluations and attendance records.
In sum, knowledge, consent and accuracy are the keys to providing or obtaining employment references in this new era of privacy protection.
Brian Kenny is a partner with MacPherson Leslie and Tylerman LLP in Regina. He can be reached at (306) 347-8421 or [email protected].
