The 411 on Background Checks: Are they Legal?

The 411 on Background Checks: Are they Legal?

When people think of background checks, they may think of a private detective lurking in the shadows, following them around late at night, and digging through their trash. However, that’s not what a background check actually consists of in the world of human resources. In Canada, background checks must be conducted according to certain laws, but in most cases conducting a background check is considered a best practice. 

What are Background Checks?

Background checks may explore:

  • Professional designations or titles
  • Educational achievements
  • Employment history
  • Driving abstract
  • Credit history
  • Criminal background
  • Social media presence

Is it Legal for an Employer to Conduct a Background Check?

Yes, it is! But, tread carefully. Think of background checks more like fact confirmations. The point isn’t to learn everything there is to know about a candidate, including their complete personal histories, likes and dislikes, and where they like to shop for clothes. Your goal is to confirm that the facts the applicant gave during the hiring process are true.

Can I Check Out a Candidate Before I Bring Them in for an Interview?

It’s not a great idea. The best time to conduct any type of background check is once a conditional job offer is made. This is because a background check may divulge some information that identifies candidates as members of one or more of the 16 protected groups under the Code. For example, a background check confirming what school a potential job candidate attended may inadvertently reveal information about the applicant’s age, language, place of origin, religious affiliation, gender identity or ethnicity. 

When Should I Conduct a Background Check?

The best time to confirm information is once a conditional job offer has been made. The reason why background checks are generally performed after a conditional offer is made is that it gives an employer the opportunity to let the candidate know what information will be collected. It is strongly recommended that the applicant’s consent is obtained prior to collecting any of their personal information.

By waiting until you make a conditional offer, you’re protecting yourself against potential liability. You’ve already put forward an offer at this stage, so the only thing that can take it off the table is discovering that an applicant has been untruthful in some way. However, be very, very aware that you cannot dismiss an applicant at this stage if you discover something about them that you simply do not like. For instance, you can’t withdraw an offer of employment for an administration role simply because you found out that the applicant graduated from university over 40 years ago, which would make them quite a bit older than your ideal candidate. Withdrawal of an offer at this stage, and in light of this information that was gleaned while confirming educational achievements, constitute age discrimination, which is prohibited under the Human Rights Code.

Can I Look at an Applicant’s Social Media?

Yes, you can! What’s more is that there are no laws or rules stipulating that you must wait to look at an applicant’s online presence. Looking at a candidate’s online profile may open you up to liability because it will reveal a lot of personal information about an applicant. For example, you will clearly be able to see the applicant’s gender identity, approximate age, and their ethnicity. You may be able to deduce their family and socio-economic status, and whether they are affiliated with any political or religious groups.

This Seems Complicated. Maybe I should Avoid Background Checks

Not so fast. Not completing background checks is also an issue. It may result in hiring an employee who doesn’t have appropriate skills to do a good job. In other contexts, it may also result in your company being subjected to negligent hiring litigation.

What is Negligent Hiring?

Negligent hiring is the liability that may result from hiring an employee who causes foreseeable harm to a third party. While exceedingly rare in Canada, these cases are classified under tort law, and may occur when employers do not practice due diligence during the hiring process by completing appropriate background checks. For example, if a delivery employee injures a worker through an act of violence at a company they are delivering to, and it’s found that the employee has a criminal record that includes past assaults, the delivery company may theoretically be liable for the other person’s injuries.

While tort liability for negligent hiring in Canada may not be significant, there are other concerns which employers would have to consider when evaluating a background check. For instance, hiring a daycare worker with a history of child-abuse may put clients’ children at risk. Hiring a truck driver with a host of careless driving charges may put the public at risk. As a result, there are both moral and legal reasons for conducting appropriate background checks.

What is a Bona Fide Work Requirement (BFOR)?

A BFOR is a work requirement that knowingly discriminates. It is acceptable, as it can be proven that the work requirement is necessary in order to complete the work (where no accommodation up to undue hardship can be made) or for safety reasons. For example, it would not be discrimination to not hire a person who is blind as an airline pilot. Sight is a bona fide work requirement of flying a plane; no accommodation that replaces sight is available, and the safety of the pilot, flight attendants, and passengers depend upon it. However, it would be discriminatory to deny the same person a job where a reasonable accommodation could be made. Record of offences is one of the 16 protected grounds under the Code. Collection of such data should only occur if it’s required for a BFOR. For example, a clean driving abstract, including no dangerous driving convictions, is a BFOR for the position of school bus driver, but it is not a BFOR for the job of grocery store clerk. 

How to Conduct a Legal Background Check

Although it may seem like there are a lot of rules, and what-not-to-dos, background checks are important. When it comes to background checks, follow these general rules:

  • Seek to discover the minimum amount of information you require to ensure due diligence
  • Inform applicants of the type of background checks you’ll be performing
  • Beware of viewing social media prior to a job offer, in case you discover information that’s protected by the Code, such as gender identity, ethnicity, sexual orientation, family status, etc.
  • Do not conduct reference checks, or driving, criminal, educational, or credit record checks until a conditional offer of employment has been extended

Background checks are an important component of your organization’s hiring process. In our view, it’s vital that the process be applied in an effective, ethical, and legal manner. This helps avoid legal disputes or ethical conundrums while hiring great talent to help achieve organizational goals and objectives!

Written by Jenn Miller | Curriculum Development Coordinator

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