August 8th, 2017 | Sterling
There are many laws, regulations and guidelines that govern background screening. These rules aim to protect candidates when their personal information is used on an application and during background screening. To respect the rights of applicants and employees, organizations should be aware of their obligations and develop background checking policies that take into account their particular needs, risk tolerance, compliance and legal obligations. The challenge for companies is finding the right balance between an individual’s right to keep their information private and the need for organizations to collect, use and disclose personal information for legitimate business purposes.
It is important to have and follow policies and procedures that promote consistency and compliance in the workplace. Documenting your company’s processes for requesting, receiving and evaluating background checks will greatly improve your ability to defend your program to individuals and regulatory bodies. Sterling Talent Solutions created a guide, Legal Considerations for Background Screening in Canada of the various compliance considerations in Canada which affect employment background screening. From this guide, Sterling also produced the checklist, Background Screening Policy Considerations in Canada to guide organizations toward best practices in documenting their processes for requesting, receiving and evaluating background checks.
Compliance with privacy and human rights laws is vital when performing employment background screening. Compliance, defined as “the act of conforming, acquiescing or yielding,” usually is used in conjunction with following a law or regulation. While compliance might not always be the most exciting of topics, it’s important for organizations to follow, especially those working with the public.
Canadian privacy laws help to ensure employees have the knowledge and control of how their personal information is handled. Privacy laws in Canada regulate the collection, use, disclosure and retention of personal information. Canada has many privacy laws at the federal, provincial and territorial levels. Each jurisdiction has a public-sector privacy law that applies to government agencies, some Crown corporations, health regions and other public-sector organizations, and several jurisdictions have privacy laws that apply to the private sector as well.
How does privacy law impact the retrieval of information for background screening? Privacy law generally limits the collection of personal information to that which a reasonable person would consider necessary in the situation. Once the necessary information has been identified, a background checking provider can help find out how to get it. Once the risk profile for each position has been established, the types of checks that are needed can be documented in a policy.
Human rights laws exist in all jurisdictions in Canada. They are designed to prevent discrimination based on certain protected characteristics. Each jurisdiction (the ten provinces, three territories and the federal jurisdiction) has its own law with its own nuances, but many of the protected classes are similar. Some of the common protected classes include race, national or ethnic origin, sexual orientation, sex, gender identity, marital status, religion, age and disability. Some jurisdictions also protect criminal record information. Many other categories exist, and each jurisdiction defines these categories in different ways, so it is vital that organizations familiarize themselves with the laws that apply to them. Where information subject to human rights protection is found, employers need to make individual assessments to decide if the candidate should be hired based on the information found in the screening report.
It is inevitable that organizations will come into contact with information identifying an applicant’s protected status during the recruitment, interview and background check process. Controls should be put in place to reduce the risk of human rights law violations. Examples of sensitive information that could appear on a background check can come from social media searches, drug and alcohol testing or criminal records and police information.
There are many risks that come along with being non-compliant with privacy and human rights laws. Individuals can file privacy complaints, which can involve time-consuming investigations and may result in your organization’s name being released. Court action or arbitration are also possibilities, and those can be quite expensive. In the case of a human rights violation, you could face human rights complaints resulting in fines or indemnities for damage. Most important is the effect on employees. They could feel that their privacy or dignity are not being respected, which would have an impact on morale, productivity and loyalty as well as could affect recruiting good talent for the company.
Recruiters and hiring managers have access to a great deal of information about job applicants. Some of this information can be covered by Human Rights and Privacy laws and must be handled very carefully. Illegal discrimination or the appearance of it may result in a human rights complaint, which can lead to a time-consuming and expensive investigation. Also, to respect the privacy rights of applicants and employees, organizations should be aware of their obligations and develop background check policies that take into account their particular needs, risk tolerance and legal obligations. Since every organization has different hiring requirements, it is recommended to consult with legal counsel when creating and updating a background screening policy.
Mark Sward, Sterling Talent Solutions Privacy Director, presented two very informative webinars about Canadian privacy and human rights laws. Both webinars, Employee Rights, Part 1: Privacy in Canada and Employee Rights, Part 2: Human Rights in the Workplace, are available for On Demand viewing. Find out more best practices for creating a background screening policy and how Canadian privacy and human rights laws affect the hiring process by downloading our white paper, Legal Considerations for Background Screening in Canada.
Please note: Sterling Talent Solutions is not a law firm. The material available in this publication is for informational purposes only and nothing contained in it should be construed as legal advice. We encourage you to consult with your legal counsel to obtain a legal opinion specific to your needs.
Download a copy of Legal Considerations for Background Screening in Canada
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.
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