This post was authored by our former lawyer, June Wright. Copyright 2014 Nelligan O'Brien Payne.
It is common knowledge that a company’s employees are the key to its success. It is therefore imperative that employers engage in thorough background checks before hiring someone. With an effective vetting process, the employer can considerably reduce the potential of any ‘surprises’ arising in the future. Overstated experience, false references and erroneous qualifications can all come back to haunt an employer who does not take the time to properly vet its candidates.
With the above in mind, it is important for an employer to consider two pieces of legislation when performing background checks:
- The Ontario Human Rights Code (‘OHRC’); and
- The Consumer Reporting Act (‘CRA’)
The OHRC provides that an employer can’t discriminate with respect to employment on the following grounds: race, ancestry, place of origin, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status and disability. Simply put, an employer cannot ask a prospective employee a question that relates to any of the categories, as it would be considered discriminatory.
The CRA applies when employers use third party reporting services to perform background checks through various means, such as social media, internet searches, etc. The reasoning behind using these external reporting services to perform the background checks on behalf of the employer is two-fold. Firstly, they screen out any information that would be improper for the employer to know in the vetting process (most notably anything related to the categories listed in the OHRC), and they also provide a layer of protection in the event an applicant asserts he or she was not hired based on a prohibited ground.
However, two fields of a prospective employees vetting process may require a little more tact: a prospective employee’s criminal history and social media presence.
Regarding criminal records, an employer cannot refuse to hire someone because he or she was convicted of a provincial offence or crime for which he or she has been pardoned. An employer can however discriminate in the prospective employees vetting process if the person has been convicted of a federal criminal offence. Criminal record checks must be reasonable and employers must only ideally check a prospective employees criminal record once before hiring the individual. In Ottawa (City) v. Ottawa Professional Firefighters Assn.1, The Ontario Superior Court of Justice upheld the decision of a labour arbitrator that did not permit the City of Ottawa to conduct criminal record checks on a regularly scheduled basis on all firefighters. Arbitrator M.G. Picher discussed the privacy concerns regarding re-checks as follows:
 …there is a significant distinction between the point of initial hire and the normal course of business in an ongoing employment relationship. The person who presents himself or herself at the door of a business or other institution to be hired does so as a stranger.
At that point the employer knows little or nothing about the person who is no more than a job applicant. In my view, the same cannot be said of an individual who has, for a significant period of time, been an employee under the supervision of management. The employment relationship presupposes a degree of ongoing, and arguably increasing, familiarity with the qualities and personality of the individual employee. On the whole, therefore, the extraordinary waiver of privacy which may be justified when a stranger is hired is substantially less compelling as applied to an employee with many months, or indeed many years, of service.
It is therefore ideal for an employer to perform a criminal record background check at the time of his or her hiring, when an employer can make an offer of employment conditional on a satisfactory background check.
Another important concern of the modern day employer is a prospective employee's presence in social media. Commonly referred to as ‘cybervetting’, Employers must be careful not to ‘screen out’ potential job applicants based solely on cybervetting results without further verification, at least, if there are potentially protected grounds revealed in the search. For example, pictures on someone’s Facebook page could reveal family status, sexual orientation, ethnicity or gender.
It is therefore important for an employer to establish objective criteria for evaluating applicants to show decisions were made without relying on illegal criteria that may have been discovered online. If not, the employer may be in breach of the CRA. In Kiyaga v. City of Windsor, for example, when the City of Windsor was looking for a Provincial Offences Officer, applicants were required to write a test after submitting their resumes. The plaintiff failed the test and was not invited back for an interview. The plaintiff claimed he was not hired due to discrimination on the grounds of colour, ethnic origin, place of origin and race. Unable to establish that he was qualified for the job, however, his claim was dismissed. What helped the employer in this case was that it had used the objective written test as a means to evaluate its candidates and the city’s witnesses were able to testify that the process was correctly followed.
In conclusion, vetting future employees has and always will be a key element to a company’s success. However, doing so carefully and within the confines of the law is of the utmost importance, and contacting a knowledgeable labour or employment lawyer should be done before the screening and interviewing processes begin.
1 (2009) O.J. No. 2914