What Every Employer Should Know About Background Checks Criminal, Credit, Driving, References and Drugs and

d Alcohol
Note: The following is generally intended for provincially regulated businesses, although many of the concepts discussed equally apply to federally regulated companies (i.e. airlines, banks, television and broadcasting, inter-provincial transportation), albeit under different pieces of legislation. With the emergence of protection of personal information legislation applicable to private sector employers, it is now more important than ever to consider the implications and potential pitfalls inherent in pre-employment background investigations. Accordingly, what follows is a very brief discussion of the legal considerations that apply in Ontario with respect to criminal, credit, reference and driving record checks. In addition, we have also briefly addressed the issue of drug and alcohol testing. It should be noted, however, that the following is not meant to be exhaustive. Rather it is only intended to be illustrative for those considering or indeed implementing any of the following background checks. General Comments Concerning Privacy and its Impact on Background Checks Without a doubt, Canadians have historically valued their privacy. As a result, the right to privacy with respect to personal information has garnered legislative protection in Canada. The federal Personal Information Protection and Electronics Document Act (PIPEDA), for instance, provides a classic example of the statutory protection afforded to an individuals personal information. In short, and for illustrative purposes only, the PIPEDA requires organizations to secure an individuals consent before collecting, using or disclosing any of the individuals personal information. Although the PIPEDA does not presently apply to provincially regulated businesses, it should be noted that similar if not identical legislation will be introduced in Ontario and indeed all other Canadian provinces by the year 2004. If for some reason a province does not adopt a similar piece of legislation by January 2004, the PIPEDA as presently drafted will be enforced in that province. Thus, in considering whether to implement a background check, employers are well advised to seek an individuals consent with respect to the collection, use and disclosure of such information. That said, we now propose to briefly discuss the legal implications involved in each type of background check. Background Checks Beside privacy concerns, conducting background checks on individuals raises many issues, not to mention their effect on employee morale within a workplace. The following briefly discusses some of the relevant legal considerations applicable to each type of check.

1. Criminal Conviction Reports In Canada, the Canadian Police Information Centre manages a database of persons with criminal records. Since the database contains sensitive personal information, only agencies and individuals approved by the Royal Canadian Mounted Police have access to those files. To undertake a criminal record search, which can be conducted either based on a persons fingerprints or name, one must first provide his or her personal information and pay the applicable fees (approximately $30 for each search). If the search results are to be released to a third party such as an employer, the individual must provide his or her written consent. The police agencies will not disclose any criminal records to third parties without a written consent. Processing time of approximately 60 days should be expected. Note, however, that although criminal searches are possible, employers should be wary of the trappings of the Ontario Human Rights Code (Code). In brief, the Code prohibits discrimination on the basis of record of offences. Record of offences is defined as an offence in which a pardon has been granted and an offence in respect of any provincial enactment. Thus, discrimination is prohibited against those convicted of provincial offences and those who have been pardoned for their Criminal Code offences. Moreover, employers should be cautious about conducting criminal searches before an offer of employment has been extended, as information required to conduct a criminal record search would necessarily disclose a prospective employees age. Age is also a prohibited ground of discrimination under the Code. Thus, we advise employers to make employment conditional on the absence of a criminal record rather than conducting the search before conditional employment is extended. Unfortunately, the 60-day or so wait for the results could effectively render this procedure practically ineffective. However, to overcome this barrier, an offer of employment could, for instance, stipulate that if a criminal record were revealed, it would be considered cause for termination. 2. Credit Reports In Ontario the Consumer Reporting Act (CRA) regulates the use of credit information by consumer reporting agencies and others. Although the CRA allows credit agencies to release purely credit information (which includes paying habits, outstanding debt obligations, assets, marital status, name and age) for the purposes of screening applicants for employment, those who request such information must first provide the consumer (or prospective employee) written notice that the information is being sought. In accordance with the CRA, such notice should be set forth clearly in bold or underlined in letters not less than ten points in size. In the event an applicant is denied employment on the basis of information received from a consumer reporting agency, the CRA requires the employer to so inform the applicant and to equally inform the applicant of the name and address of the consumer reporting agency which provided the information. In addition, the applicant is also entitled to be informed of his or her right to request the information provided to the employer. To the extent that reference checks and employment applications seek information relating to a prohibit ground of discrimination under the Code, employers must be wary not to run afoul of

the Code. By way of example, if an employment application or reference check seeks an applicants age, a prohibited ground of discrimination, before an offer of employment is extended, the employers ultimate decision not to extend an employment offer could potentially be challenged under the Code. 3. Driving Abstracts In Ontario, driving records are publicly available through the Ministry of Transportation. By completing an Application for Driver Record Search at any Driver and Vehicle Licence Offices, Driver Examination Centres and Kiosks in the province, and by paying the appropriate fees ($12.00 to $18.00), information regarding an individuals driving history for a three year period may be obtained. The document containing this information is called a Driver Abstract. Although only either (1) a persons drivers licence number or (2) a persons name and date of birth is required to obtain a Drivers Abstract, we recommend that employers wishing to obtain such information also seek the employees or prospective employees consent. Note that because Ontarios drivers licences and abstracts contain personal information, such as date of birth, gender, etc., which could lead to a prohibited ground of discrimination contrary to s. 23(2) of the Code, we recommend that such searches be conducted after a conditional employment offer has been extended. Finally, it should equally be noted that absent bona fide and reasonable requirements, employers cannot discriminate on the basis of record of offences, which includes provincial driving offences under the Highway Traffic Act. 4. Reference/Educational Checks Generally, candidates applying for employment offer personal references and information concerning their educational background. Employers wishing to confirm a prospective employees education or to obtain a personal reference are entitled to do so, but they are advised to keep copies of any employment, educational or personal references received or authored for at least one year. This obligation arises from the operation of ss. 12 (1) (d) and (e) of the Credit Reporting Act (CRA) which, to paraphrase, requires employers upon request and without charge to disclose to employees or former employees: (a) the names of recipients who were provided a reference, i. containing information about the employees character, reputation or personal characteristics, within the one year period preceding the request, and ii. containing information with respect to the employees name, age, occupation, particulars of education or professional qualifications, places of employment or previous places of employment, within the six month period preceding the request;

(b) copies of any written reference pertaining to the employee provided to any other person or, where the reference was oral, particulars of the content of such oral report, furnished i. where the reference contains information about the employees character, reputation or personal characteristics, within the one year period preceding the request, and ii. where the reference contains information with respect to the employees name, age, occupation, particulars of education or professional qualifications, places of employment or previous places of employment, within the six month period preceding the request. It is also interesting to note that under the CRA, an employer who denied employment to a candidate because of negative reference from another employer is required to notify the candidate of this fact. Once notified, the candidate would then be entitled to request the name of the person who supplied the reference and the nature of the information it contained. In practice, however, few employers relay this information to unsuccessful candidates, and there does not appear to have been any prosecution to date for failure to comply with the CRA. 5. Drug/Alcohol Testing Drug/Alcohol testing is very controversial. The Ontario Human Rights Commission (Commission) has adopted the position that such testing is prima facie discriminatory on the basis of handicap and thus can only be conducted in limited circumstances. Moreover, the Commission has taken the view that if such testing is warranted, it must be limited to determining actual impairment of an employees ability to perform or fulfil the essential duties or requirements of his or her job. It must not be conducted for the purposes of simply identifying the presence of drugs or alcohol in the body. A recent Ontario Court of Appeal decision confirms that employers can only resort to such testing if they can meet the following three-step analysis set out by the Supreme Court of Canada: i. the employer has adopted the standard or test for a purpose that is rationally connected to the performance of the job; ii. the employer adopted the particular standard or test in an honest and good faith belief that it was necessary to the fulfilment of that legitimate workrelated purpose; and iii. the standard or test is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonable necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

Applying the three-part test to drug and alcohol testing, the Commission suggests that the following be considered by employers: (a) Is there an objective basis for believing that job performance would be impaired by drug or alcohol dependency? In other words, is there a rational connection between testing and job performance? (b) In respect of a specific employee, is there an objective basis for believing that unscheduled or recurring absences from work, or habitual lateness to work, or inappropriate or erratic behaviour at work are related to alcoholism or drug addiction/dependency? (c) Is there an objective basis to believe that the degree, nature, scope and probability of risk caused by alcohol or drug abuse or dependency will adversely affect the safety of co-workers or member of the public? Clearly, drug or alcohol testing is not justified in all workplaces or circumstances. However, those in the position to justify pre-employment or on-the-job drug or alcohol testing should ensure that the tests are conducted by qualified medical professionals and that results are kept in the strictest of confidence. Finally, should an employee or prospective employee test positive, then the employer will have to accommodate the employee to the point of undue hardship. Conclusion Although many of these background checks are available, an employer is well advised to secure its employees or prospective employees consent with respect to the collection, use and future disclosure of the information gathered. Moreover, since such checks could reveal particulars in relation to prohibited grounds of discrimination in Ontario, to avoid a misapprehension of discrimination, we suggest that employers defer from asking for particular information until after making an offer of employment conditional on a satisfactory check of the relevant records. * for information purposes only