June 21st, 2019 | Sterling

Re-checking your employees

Re-checking your employees

Is running a background check on your current employees a necessity or a nice-to-do?

Organizations are increasingly asking whether there is a need to require that their employees or volunteers be re-checked periodically. Subject to privacy considerations that must be applied, there are opportunities to enhance organizational integrity and due diligence through the implementation of a comprehensive approach to re-checks.

Relative to the subject position or the sector, many organizations are recognizing that some aspects of a background check should be subject to review from time to time. For example, criminal record and judicial matters information can change and subsequently surface post-hire or placement. Furthermore, such changes will most likely be relevant. Whether or not re-checking occurs and how often it should be done, should be determined by organizations’ policy makers, legal counsel or insurance underwriters. Sterling Backchecks role is to provide trusted advice and real-world solutions designed to support protocols that are compliant and efficient. When new or changing information is relevant to the subject position and is “know-able” it creates an opportunity for organizations to ensure added due diligence.

Today’s Context:

Recently, the Province of Ontario introduced the Police Record Check Reform Act (PRCRA) into law. This legislation is foremost in Canada and leads the way in several respects:

  • It defines three levels of checks:
    • Criminal Record Check (Level 1)
    • Criminal Record and Judicial Matters Check (Level 2)
    • Vulnerable Sector Check (Level 3)
  • It lists the types of information sources to be searched in relation to each level
  • It controls and limits disclosure of information about applicants to requesting organizations to that which is relevant and appropriate
  • It provides affected individuals (applicants) with right of review and a means to seek correction to their personal information before it is shared with a third party
  • Importantly, it enables third party background screening companies to provide checking services to organizations in a manner that is wholly consistent with the goals of the legislation

It is useful to use the Police Record Check Review Act as a framework for a discussion about re-checking because the levels described align with Sterling’s Canadian Criminal Record Check (CCRC) and Enhanced Police Information Check (EPIC) services as Levels 1 and 2 respectively. We’ll discuss more about Level 3 later in this article.

Why re-checking?

It’s simple: we re-check because things can change. To elaborate, a criminal record is a compilation of criminal convictions attributable to an individual through the submission of fingerprints. Contributors are the police services across the 2500 jurisdictions in Canada. Someone could be arrested or charged with a criminal offence anywhere in Canada at any time, triggering the submission of new conviction information to an existing criminal record or the establishment of a new criminal record for an individual where none existed previously. That someone could very well be your existing employee.

Note that a criminal record as discovered by a “Level 1” check is not necessarily the same thing as having a criminal conviction. It is possible to have criminal convictions without having a criminal record.

A search of Local Police Information, as completed when utilizing Sterling Backcheck’s EPIC service, is essential to discover the existence of – or changes to – Judicial Matters information. Such information includes:

  • Convictions that cannot be lawfully sent to the National Repository
  • Convictions that police services have not sent/may never send to the National Repository
  • Convictions that have been sent to the National Repository but are not yet available due to delays in uploading the information
  • Charges that are pending and any associated bail conditions
  • Arrest warrants that have been issued by the courts
  • Terms of probation that are in effect that a court imposed
  • Prohibition orders issued by a court (usually pertaining to driving or firearms convictions)
  • Peace Bonds that are in effect (commonly referred to as restraining orders)

So now you’re potentially looking at additional information about your existing employee.

What about the Vulnerable Sector Check?

Since periodic re-checking for Level 1 and Level 2 may be appropriate, one might assume that the same applies for Level 3. In fact, the single distinguishing aspect of a Level 3 process is a search of the Pardoned Sex Offender Data Base; a data base that is static in nature with no new entrants added since 2012.

Accordingly, if a Level 3 search is warranted, there is an approach that can be taken to limit its requirement to the initial determination respecting the individual in that position. Once established, a more effective “go forward” approach is possible.

Recommendations

As changes do occur after your employees have been with the organization for a while, re-checking is an important policy to consider implementing. And by now, you’ve probably noticed that Level 2 searches are where the most activity is likely to occur. Put simply, at some stage in the judicial process, all matters transit the scope of the Level 2 search – Sterling Backcheck’s EPIC product – whereas the same information may not be reflected at Level 1 and, due to changes in law introduced in 2012, will not be reflected at Level 3, ever.

If re-checking is something that your organization is considering, speak with us about how implementing a program utilizing Sterling Backchek’s EPIC service provides a comprehensive “Criminal Record and Judicial Matters” approach to continuous due diligence.

References:

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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