BACKGROUND CHECKS: THE LEGALITY OF REFERENCE, CREDIT, CRIMINAL AND

QUALIFICATION CHECKS

Tamara HunterHead of the Privacy Law Compliance Group

Vancouver, BC

Types of Checks

• prior employment• educational/professional • criminal record• police information• credit• internet/social media• court records• full background

Employment/Educational/Professional

• Generally, the least problematic and can be addressed by appropriate wording on application documents

• “off-resume” contacts or “gaps” in work history (address case by case with employee and/or through application form wording)

Criminal/Police

• Criminal Record Checks – involve search of CPIC database for prior criminal convictions, penalties or outstanding charges

• Police Information Searches – involve search of local police databases, such as PRIME, for “adverse police contact” (investigations with no charges, charges with no convictions)

Police Information Checks

• BC Privacy Commissioner has said these are very privacy-invasive and are “seldom justifiable”

• Not done by Government of BC even for designated positions involving law enforcement or custody/control of significant assets

Criminal Record Checks

• Required by statute for individuals working or volunteering with children or vulnerable adults

• Privacy Commissioners (and labour arbitrators) have said consistently that blanket criminal record check requirements for all employees are not justifiable under privacy legislation

Criminal Record Checks

• Appropriate for certain positions involving access to or responsibility for valuable assets, sensitive information, information management systems

• Positions involving trust (e.g. senior executives, financial management)

• Responsibility for statutory audits/investigations• Positions involving administration of justice /law enforcement

Investigation Report F12-03 BC OIPC

• Found 85 % of BC Government’s 33,500 employees required criminal record check (too many!)

• Found 6 out of 10 “designated positions” reasonable, 4 were too vague/broad

Investigation Report F12-03 BC OIPC

• Positions involving “access to personal information” too broad

• Other security measures available – e.g. restricted access to personal information

• Positions involving audits/investigations required only by policy and not by statute – too broad

Vancouver (City) v. Vancouver Firefighter’s Union Local 182010 CanLII 81705

• Some “designated positions” not reasonable for criminal record checks

• Mere contact with vulnerable people insufficient – must have on-going or significant relationship with vulnerable people or have unsupervised access to vulnerable people

Human Rights Legislation

• Must also consider whether a conviction is “relevant” to an employment position

• Employer cannot refuse to employ (or to continue to employ) someone because of conviction that is unrelated to their employment

• Must be assessed case by case (nature of offence, nature of position, age of conviction, rehabilitation)

Timing of Criminal Record Checks

• BC OIPC: should only be done after employer has made a conditional offer of employment (no earlier)

• On-going criminal record checks of existing employees (e.g. every 5 years) – should be the exception, rather than the norm

Timing of Criminal Record Checks

• On-going checks may be appropriate where highly sensitive services/security involved (e.g. handling or transporting substantial assets or highly sensitive information)

• Not necessary when employee transferred to new position with substantially similar risk factors

Ottawa (City) v. Ottawa Professional Firefighters Assn.[2009] O.J. No. 2914 (S.C.J.)

• “The person who presents himself or herself at the door of a business or other institution to be hired does so as a stranger….the same cannot be said of an individual who has, for a significant period of time, been an employee under the supervision of management.”

Credit Checks

• Again, not justified for all employees, depends on the position

• Alberta OIPC Investigation Report P2010-IR-001• Mark’s Work Wearhouse not justified in requiring applicant

for sales associate to undergo credit check, as the position was closely monitored

• Similar finding re: receptionist in 2005-IR-008

Government of Alberta v. Alberta Union of Provincial Employees (Arbitration Award, April 2012)

• Damages of $1250 per grievor awarded against Alberta Government for unjustified credit checks done in the course of a fraud investigation

• Officer in MEP’s special investigation unit used ability to directly access Equifax database to access credit reports on 26 employees to see if any in financial difficulty

• It was later determined fraud was responsibility of parties outside MEP

Internet/Social Media

• Requiring applicants to provide pass codes for social media – condemned by several privacy commissioners

• Accessing public areas of social media, blogs, etc.• Some commissioners have deterred, but Alberta Court of

Appeal has recently questioned validity of overly broad definition of “personal information” in Alberta PIPA

United Food and Commercial Workers v. Alberta (Information and Privacy Commissioner) 2012 ABCA 130

• “people can reasonably be held accountable for what they do or do not do in public”

• Case related to videotaping of picket line and publication of same by union, but Court’s comments may have broader impact

Full Background Check

• Checking out an employee’s former landlords, neighbours, etc. in addition to credit check, police information check, court records, internet/social media

• Rarely justified, possibly for CSIS or high diplomatic positions!

Won’t we get sued if we don’t do all these checks?

• USA – employers found liable for “negligent hiring”• BC OIPC: this concern is not supported by Canadian case

law – no such tort in Canada• Unlikely to be liable in Canada if following

arbitrator/commissioner findings and if other personnel practices reasonable (e.g. reference checks done, appropriate oversight and supervision)

Thank you for attending today's session.

Tamara L. HunterDavis LLPBarristers & SolicitorsSuite 2800, 666 Burrard StreetVancouver, BC V6C 2Z7Phone: 604.643.2952Fax: 604.605.3712Email: tamara_hunter@davis.ca