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September 30th, 2015 | Sterling
Distinct differences in the legal landscape between Canada and the United States can make background screening tricky for a company that operates on both sides of the border. And understanding these differences is vital to mitigating risk and avoiding litigation.
We recently conducted a webinar on background checks across borders, which primarily focused on how to build an effective and compliant cross-border program. Our experts, Mark Sward and Joe Rotondo, examined the popular background check services and associated compliance concerns in both Canada and the United States.
Participants were provided with an opportunity to ask questions about cross border background screening and SterlingBackcheck’s products. Here is a recap 7 commonly asked questions – from HR recruiters like you:
What is the required retention period for the results of background screenings in Canada and how do these differ from the US?
Retention requirements depend on the type of information and where it is collected. Minimum retention periods range from 1 to 6 years. Maximum retention periods are not defined, but under privacy laws, personal information should not be retained once it is no longer needed.
In the US, it is mandated by the Fair Credit Reporting Act (FCRA) that you keep background checks for a minimum of 5 years plus the current year.
How do you do a background check on someone who has moved from somewhere outside of Canada and the US within the last couple of years?
You’ll want to partner with a background screening company that can conduct checks in a multitude of countries. Regardless of location, your organization must decide what background checks are required to mitigate your risk.
For both Canada and the US, you mentioned not asking for a criminal check until you are prepared to make an offer – does this mean the candidate should be presented with at least a verbal offer before being asked to consent to the criminal check?
Yes. We recommend waiting until you are ready to make a verbal or written offer before doing any checks that may be privacy-invasive or have potential to retrieve information that is protected under human rights law.
For U.S. criminal background checks, do most employers conduct Federal, State & County searches? What does SterlingBackcheck recommend and how does this differ from Canadian criminal searches?
Most clients conduct County and State criminal record searches, but I see more and more clients adding Federal District searches to their packages. If you have the budget, I would recommend running the Federal District Criminal search. Without a Federal District Criminal search, you could be missing some very important criminal activity like money laundering and kidnapping.
In Canada, criminal record and police information is held at the federal level by the Canadian Police Information Centre (CPIC), and all criminal law is enacted at the federal level but prosecuted at the provincial level. While provincial court searches are possible, in provinces other than Quebec they tend to be time consuming and expensive and add little to what can be found in the CPIC databases.
Is there a best practice regarding background screening for Canadian Citizens working in the United States?
People working in the US are subject to US law, so you should ensure that you are complying with the FCRA and state law in your background screening program. Similarly, people working in Canada are subject to Canadian law, so you should comply with applicable provincial or federal privacy and human rights laws.
You must determine which types of searches are necessary to mitigate your organization’s risk.
Are there any standard questions that have been developed to test whether credit is relevant to a position?
There are none that we are aware of at this time. The States and NYC that have passed Credit Report restrictions, list the exemptions to the law. Privacy commissioners in Canada have also declined to provide clear guidance, instead relying upon a test of what is “reasonably necessary”.
If you make a verbal offer and then find out there is a criminal record can you rescind the offer?
In the US, you would need to follow the EEOC guidance and complete the Adverse Action process. In Canada, you would have to ensure your decision is compliant with local human rights law and notify the applicant of the reason for your decision.
We hope that you’ve found these top 7 Background Checks Across Borders Questions & Answers helpful. If you missed SterlingBackcheck’s webinar Background Check Across Borders (Canada & U.S.), you can watch on your mobile device, iPad or desktops at any time.
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.