Better safe than sorry…

Background checks on employees can be useful

An employer can be held liable if it does not take due care in making a hiring decision and its employee subsequently causes harm or damage to another employee. This concept of “negligent hiring” is rooted in both Canadian and American jurisprudence.

This principle was re-affirmed by the Supreme Court of Canada in the 1999 case, Jacobi v. Griffiths. This was a sexual abuse case involving an employee, Harry Griffiths, of the Boys’ and Girls’ Club of Vernon, B.C. The Supreme Court observed that direct liability against an employer could have been found if “the club was negligent in hiring Griffiths, or supervising him, or in using Griffiths to discharge its own duty of care to the children.”

It is becoming increasingly common for employers to conduct criminal background checks before making hiring decisions. Criminal background checks are mandatory for some professions under legislation or under the rules established by a self-governing profession. An employer, however, must always receive consent from an applicant prior to requesting a criminal record and other background searches. Employers can either include such consents in the application form or prior to making a final decision on the candidate.

Most employment that involves interactions with potentially vulnerable clients or patients (such as the elderly, young children and those that are mentally or physically handicapped) require criminal record checks prior to admission or hiring. The following is a non-exhaustive list, based on Ontario regulations, which mandate criminal record checks. Many provinces have similar regimes. Criminal background checks are required for:

•paramedics;

•social workers;

•teachers;

•physicians;

•nurses;

•police officers; and

•lawyers

In the public sector, most governments and financial institutions have protocols regarding security and criminal background checks for employees.

An employer should conduct a criminal record check when hiring a new employee where the applicant has access to vulnerable individuals, sensitive data or valuables. However a criminal record check, on its own, may be insufficient. Police records often do not disclose falsification of credentials, financial irregularities, or unusual gaps in the candidate’s work history.

According to a study conducted by Infocheck, a Toronto-based reference checking firm, resume fraud is becoming increasingly common in the Canadian workplace. Out of 1,000 “short-listed” applicants, 33 per cent were found to have lied on their resumé and past performance issues. This was nine percentage points higher than a study done the year before. Furthermore, roughly seven per cent of the final employment candidates screened by Infocheck were found to have a criminal record.

Employers should consider:

•What is the nature of the job being applied for?

•Is there any chance that the employee could be in contact with a vulnerable person?

•Will the employee have access to confidential or sensitive data, including financial, health or security information?

Depending on the answers, the employer can consider what, if any, level of verification is appropriate, including:

•Conducting independent verification of personal data, educational or professional qualifications, and employment data and references;

•Obtaining a declaration from the candidate concerning any convictions for a criminal offence for which a pardon has not been granted;

•Obtaining a proper criminal background check from either the RCMP or a reputable provider that conducts background and criminal checks; or

•A credit check to ensure the financial stability of the candidate.

The real test in determining potential employer liability is whether an employer has taken all reasonable steps in ensuring the applicant would be a safe and reliable member of the workforce. Some judgment should be exercised. The level of security check for an individual independently working with vulnerable adults or children needs to be higher than for an individual who is strictly supervised on a factory floor.

An employer must remain cognizant of potential human rights concerns that can arise during the hiring process. Several jurisdictions have enacted a measure of protection for individuals with a criminal record. The Ontario Human Rights Code prohibits discrimination based on an individual’s record of offences, which is defined narrowly as being a conviction for an offence in respect of which a pardon has not been granted, or an offence in respect of any provincial enactment.

An employer can discriminate if lack of a criminal record is a bona fide occupational requirement. Quebec, British Columbia and the Yukon prohibit discrimination based on an individual’s criminal record unless the record relates directly to the intended employment. Both federal and territorial legislation governing the Northwest Territories and Nunavut prohibit discrimination based on a pardoned criminal conviction. In conducting a criminal background check, employers need to be aware of the applicable legislative regime.

In assessing the impact of a criminal report, an employer should be reasonable. An old assault conviction, for example, may or may not be relevant to the individual’s present application. An employer should probe further and insist on obtaining more information about the circumstances leading to the conviction. Obviously a youthful offense involving poor judgment may not be relevant to an employee’s application 10 years later for a position as a manager of information technology.

Neena Gupta is a partner with Goodman and Carr LLP’s Human Resource Management Group. Shawn Pulver is a second-year law student from the University of Western Ontario, who will be joining Goodman and Carr LLP as an articling student.

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