Employee Background Checks and Hiring Issues

Employers are constantly having to balance their right to information about their employees which will assist them in determining their suitability for a particular job, and the right to privacy of that employee. The issue usually arises when there is a job opening and candidates for that job are sought from outside the hiring company.

Many employers institute background checks for applicants as a reasonable safeguard. On the whole, it is a better practice only to conduct such checks after a conditional offer of employment has been made. The most common background checks include criminal checks, verification of education, verification of professional qualifications, credit checks, driver record searches and employment references.

Employers should inform job applicants of the requirements for background checks in their job advertising or at the preliminary interview. This gives the applicant the opportunity to decline to continue further with the application at an early stage and before private information about that individual has been gathered.

Consent to background checks should be obtained from the applicants. Employers have been successfully sued for conducting credit checks on job applicants without their knowledge or consent. To conduct checks without consent may create a risk of human rights or privacy complaints. Credit checks should only be requested where there is a clear connection between the applicant’s credit history and the type of employment offered.

It is important to limit the type of background checks to those which are reasonably necessary to determine the suitability of a potential candidate for a specific position. For example, requirements to produce a valid driver’s licence, or an abstract of a driving record should be strictly limited to job positions where driving is an essential element of the job.

Criminal background checks are appropriate for persons applying for positions of trust and who may deal with a vulnerable population. There are two types of criminal background checks: a certified record check and a local police search. The first is conducted by the RCMP and requires the individual to provide fingerprints. The local police search results do not guarantee that the person does not have a criminal record, only that the person is not known within the local criminal system. Criminal background checks do reveal the criminal record. However, they will not reveal convictions for which a pardon has been granted, or where the individual received a conditional or absolute discharge. In addition, where an individual has been convicted of a sexual offence, that information will only be revealed if the prospective candidate is to be hired into a position of trust or authority respecting a child or vulnerable individual. If this type of request for a background criminal check is made, specific consent to the release of that information must be obtained from the applicant.

Reference checks may be a valuable source of information, however, many employers are now instituting policies to either give no references or to confirm only objective employment related information such as start and termination date and confirmation of type of employment and employment duties. If an employer does conduct reference checks, the employer should use a standard list of questions to avoid future allegations of bias or unfairness in the hiring process.

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