Important to know how background checks work, when they can be used

By Tony Poland, LegalMatters Staff • Background checks are sometimes part of the hiring process, which is why it is incumbent on employers and employees to make the effort to understand exactly what they entail and how they should be used, says Toronto employment lawyer Ellen Low.

“What should be noted is that some people don’t necessarily realize that there are three different types of background or police record checks in Ontario,” says Low, principal of Ellen Low & Co. “The reason it is important to distinguish between the three is that often an employer will simply ask for a background record check. It is imperative to understand what specific background check the employer is purporting to do. It is also essential to get informed consent.”

She tells LegalMattersCanada.ca the Police Record Checks Reform Act (PRCRA ) governs how police record checks are conducted in Ontario and what is included in the process.

Three checks are authorized

“The Act authorizes three different types of checks,” Low explains. “A criminal record check is very broad and contains criminal convictions and findings of guilt going all the way back to the Youth Criminal Justice Act. The next type of common search has information about criminal records such as any outstanding charges, arrest warrants, some limited judicial orders, any absolute discharges, conditional discharges and other records permitted under Act.

“The most invasive search of the three is called a vulnerable sector check and that will contain not only the information that is in a criminal record check and judicial matters check but it will also include findings such as not criminally responsible due to a mental health disorder,” Low adds. “It will also show record suspensions, otherwise known as pardons, related to sexually based offences and other non-conviction information related to the predation of children or other vulnerable persons.”

According to the Ontario government, under the PRCRA those asked for a police records check are entitled to the following protections:

• Certain information cannot be disclosed under the Act, including whether you were a victim or witness of a crime or if you had non-criminal contact with police while you were experiencing a mental health crisis (meaning it did not lead to charges).
• If a police record check provider carries out your check, the results will be released directly to you to confirm they are factually correct before you give permission for them to be released to a third party.
• Youth records, if released to the individual, are released as a separate record and should not be shared with anybody else, including a potential employer.
• If you believe certain records in your check are inaccurate or should not be included as per the PRCRA disclosure rules, you can ask the police record check provider for information on how you can seek a correction.
• If you believe certain non-conviction information should not be included, you can ask the police record check provider to reconsider whether the information should be contained in your check.

Checks must conform with Human Rights Code

Low adds that the check must also conform with the Ontario Human Rights Code.

“There are some limitations with respect to the use of criminal background searches from a human rights perspective,” she says. “While police records checks can obviously be a valuable tool for people who want to scrutinize potential employees or even volunteers, these checks can be quite invasive and could potentially lead to discriminatory treatment.”

“For example, the vulnerable sector check is broad and could include disclosure of a criminal offence where the individual is ultimately found not criminally responsible due to mental health issue,” Low adds. “If the employer then decided not to hire that person, that might leave them vulnerable to a Human Rights Code complaint that the person’s mental health played a role in the decision not to hire them, which would be discriminatory.”

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As well, under the Human Rights Code an employer can’t discriminate against an employee based on a “record of offences,” she says.

“That is where there is an offence with respect to which a pardon has been granted or the offence is under the provincial law, such as a speeding ticket in the Highway Traffic Act,” says Low. “If something is revealed there must be a bona fide reason at law to make the decision not to hire based on that record of offences.”

People are often unaware of what is involved with seeking a background check, she says.

‘Need to distinguish type of check they are asking for’

“If your employer asks you to do a police record check, they will need to distinguish which type of check they are asking for, ” says Low. “Strictly speaking, it is the individual who is the subject of the police record check that should be providing written consent specifying which check is being consented to.

“Is the employer looking for a criminal record check or a vulnerable sector check,” she adds. “From a human rights perspective, an employer must be able to demonstrate that there is a bona fide occupational requirement for vulnerable sector checks. That type of search is typically reserved for those who are working with the vulnerable population.”

There are also some limits with respect to how the results are disclosed, Low says.

“If you are the subject of a search, you should get the opportunity to review the results first just to make sure there isn’t something that you have forgotten about or something that has slipped your mind that you do not wish to share with the employer,” she says. “You should also find out whether the police record check complies with the Act before deciding whether to disclose the results.”

Low says a police search could be a condition that must be met before a person is hired.

Get it in writing

“In terms of practical advice, if your employment contract has any language that suggests the offer may be conditional on a police record check, you will want to ensure in writing that condition has been satisfied or waived before you resign from your existing job,” she says.

It is not unusual for some companies to ask people to check a box in the offer of employment authorizing a background check. Still, Low says potential employees should do their search themselves to ensure the information is kept in the right hands.

She also says prospective employees should do as much as they can to understand the process.

“Ask specific questions about what kind of search is being requested and need for that information,” says Low. “Perhaps even get down to the weeds in terms of how they are going to search and where the information ends up. Will it be sent to a designated person within human resources who will deal with it in accordance with the privacy policy of the company so that not everybody has access to it?”

“It goes back to first principles which is when in doubt, look for answers. And if you have a contract of employment that you are seriously contemplating accepting, get it reviewed with an employment lawyer.”