April 4th, 2017 | Sterling

My Ears Are Burning: Transparency with Applicants When Reviewing Background Check Reports


I don’t really mind people talking about me behind my back. If I’m interesting enough to talk about—positive or negative—that’s a plus for my ego. What gets to me though, is curiosity: I really want to know what people are saying! Knowing what others know about me helps me communicate more efficiently and effectively with friends and colleagues and better understand my place in my social and professional world. Perhaps most importantly, I can correct the record where people believe things about me that aren’t true. Unfortunately, there’s no law that says people have to disclose the gossip they heard at the water cooler, so usually I just have to hope that people will tell me what they think rather than telling each other.

When it comes to background checks, however, employers and third-party background screening firms do have obligations to be transparent with applicants about their personal information. These obligations are set out in privacy and consumer reporting laws and apply in almost every jurisdiction across Canada. Furthermore, regardless of the law, I simply don’t think it’s fair to make a decision about someone based on information that the person has not seen. Information collected in background checks can be inaccurate or incomplete for many reasons, including mistaken identity, mis-keyed entries in databases and even malicious former co-workers giving out bogus references. To ensure that inaccurate or out-of-date information is not inadvertently used to make a hiring decision, I always encourage employers to give applicants a chance to review the results and dispute their accuracy before making a final decision.

What Does the Law Say?

Privacy laws in Canada do not apply to all employers in their collection of applicant and employee personal information. Generally, public employers across the country, private employers in the federal sector and all employers in British Columbia, Alberta and Quebec are subject to federal or provincial privacy laws that mandate disclosure of personal information to the person it is about upon request. Privacy laws may apply to the employer and the background screening firm, meaning that either one could be required to disclose personal information to the person.

In addition to privacy laws, most Canadian provinces have consumer reporting laws that regulate the business of creating reports about individuals (like background checks). These laws require the consumer reporting agency to release copies of reports directly to individuals within a certain timeframe, and also require the employer to notify the applicant of their right to obtain a copy of the report. In some provinces, that includes providing written or verbal notification when an adverse decision has been made based in whole or in part on information from a background check.

Finally, the Ontario legislature has passed the Police Record Checks Reform Act, which requires that background screeners inform applicants of the results of a police check—and ask them for consent to share those results—before delivering results to the employer that requested the check. While this law is not yet in effect pending the drafting and promulgation of regulations, it will affect Ontario employers’ transparency responsibilities once it does apply.

What If the Applicant Disputes Results?

Applicants who wish to dispute the accuracy or completeness of background check results have the option of contacting the company that conducted the check to ask for their dispute to be investigated. That investigation may involve collecting additional documentation from the applicant or following up with the source a second time. In some cases, results will be updated; in others, it will be determined that the facts do not support the applicant’s claim. Finally, in rare cases it may be impossible to resolve a dispute, in which case any disputed information will simply be removed from the report. In any event, applicants are generally permitted to add their own comments or explanations to a report if they feel that some additional information is needed or if they disagree with what is presented. Disputes are usually resolved in a matter of days, and any update to a background check report is then communicated to the employer that originally requested it.

To be fair to your applicants, to comply with the law and to avoid losing out on otherwise qualified candidates, the best policy is to be transparent. It’s not like water cooler gossip, where you might break a social taboo or hurt someone’s feelings by passing that gossip on to the person being talked about. In the case of background checks, the applicant’s livelihood is on the line as well as your ability to fill the position on time. Relying on incorrect or incomplete information will end up hurting both the applicant and you, the employer.

While my desire to know what people say about me when I’m not around may not be realistic or justified, if I’m applying for a job, you can be sure I’m going to take a look at my background check report and if something seems amiss, I’m going to make sure it gets fixed.

To find out more about background screening checks in Canada, download Sterling Talent Solutions’ eBook, Background Screening 101.

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.