June 1st, 2015 | Sterling

Not Knowing the Details is Not Good Enough!

Avoiding human rights violations in criminal record checks

Every Canadian jurisdiction has a human rights law that protects job applicants and employees from discrimination. As a recruiter or hiring manager, you must familiarize yourself with the law that applies in your jurisdiction and build protections into your recruiting and screening processes to be sure that no instances of illegal discrimination sneak in. Each law is slightly different, so if you operate in multiple jurisdictions you may need to learn about each one.

Newfoundland and Labrador, Prince Edward Island, Quebec, British Columbia and Yukon have a unique protection in their human rights laws: you cannot discriminate based on criminal record information unless it is related to the position. This means that before you can make a negative employment decision based on criminal history, you must know the full details of the record and evaluate them with the specific duties of the position in mind.

Unfortunately, name-based Canadian criminal record checks cannot always retrieve details; if an applicant is unable or unwilling to disclose the details of the record correctly, what do you do? Many would say if the applicant was dishonest, you can simply use that as the reason not to proceed with the hire, but that may not always be the case. If you find out about a criminal record – whether or not the applicant disclosed it to you – and you decide not to hire that person, you may be committing a human rights violation.

So what do you do? First, sit down with your applicant and explain the situation. You have found that there may be a record, but it wasn’t disclosed (or wasn’t disclosed accurately). Be clear that you will not discriminate based on a criminal record that is not relevant to the position, but you cannot make a decision until you see the record. Perhaps they didn’t think the record needed to be disclosed at all, because it was so old. Maybe they made a good faith effort to disclose it but got the year of the offence wrong. Regardless, they have a few options for getting you what you need. They can speak to the lawyer that represented them to get the details, contact local police to ask them if they have the details on file or visit the court where the case was handled to see if they can release records. If those don’t work, or if they are adamant that they do not have a record, they can get a fingerprint check from the RCMP.

Once your applicant has obtained the details of their record, you can accept them at face value, or, to protect against forgery and maintain a consistent process, you can ask them to consent to a new check to confirm that the new disclosure is accurate. SterlingBackcheck’s Zero-In service is designed as a quick and inexpensive “re-check” for applicants who fail to disclose correctly the first time.

The bottom line is that you must give your applicant a chance. Blindly discriminating against people with irrelevant criminal records is unfair to the individual and may land you in trouble with the human rights commission.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.