Robert C. Taylor and Sunira Chaudhri
Just as any savvy consumer would check under the hood to avoid purchasing a lemon, smart employers do background checks on prospective employees. However, they must conduct background checks carefully in order to avoid running afoul of human rights legislation.
Employers often rely on the representations made in a prospective employee’s application. Too frequently, our firm receives frantic phone calls from employer clients after they have hired someone whom they later found to have grossly overstated their experience or credentials. This can sometimes lead to needless and wasteful litigation and the expense and time associated with starting the interview process all over again. Employers should always phone former employers and references and vet potential employees to avoid this situation.
The advantages of conducting background checks are obvious. An employer can:
- Verify information provided by an applicant;
- Learn more about each applicant; and,
- Acquire objective information about each applicant that may raise a legitimate concern about the qualifications of that individual.
The risks are that the employer may acquire information about an applicant which:
- Constitutes a protected ground under the Ontario Human Rights Code;
- Is false; or,
- Is out of date.
There are two pieces of legislation that employers have to keep in mind if they engage in background checks. The first is the Ontario Human Rights Code which provides that an employer cannot 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.” Moreover, an employer cannot ask an applicant for information that “directly or indirectly” classifies a person by a protected ground. For example, asking an applicant how old she is would find an employer in violation of the code.
The other statute is the Consumer Reporting Act, which applies when an employer use third parties to perform background checks through various means, including social media. Employers use third parties which screen out information that would be improper for the employer to know, such as information related to any of the prohibited grounds under the code. Where a third party is used, any information as to “race, creed, colour, sex, ancestry, ethnic origin, or political affiliation” cannot be collected. This provides the employer with some additional protection in the event an applicant asserts that he or she was not hired based on a prohibited ground. If the applicant is not ultimately offered employment, wholly or in part due to a background check, the employer must provide certain information to the applicant, including who conducted the background check.
Employers may want to specifically conduct background checks on the following:
- Criminal history
- Credit history
- Education, credentials and past experience; and,
- Social media presence.
While employers can often rely on references to verify previous experience and education (to an extent), employers may have to engage alternate approaches to gain information with respect to criminal history and social media presence.
As employment lawyers we are often asked whether an employer can conduct a criminal records check before hiring. While criminal records are a matter of public record, 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. Employers, however, are allowed to discriminate if an applicant has a federal criminal conviction of any kind. Employers should not and cannot be overzealous in this process. Criminal checks have to be reasonable, and employers may run into problems conducting ongoing criminal checks after hiring an employee.
This was exemplified in Ottawa (City) v. Ottawa Professional Firefighters Assn.  O.J. No. 2914, an Ontario Superior Court decision that precluded the City of Ottawa from conducting mid-employment criminal checks of firefighters. The court held that such checks would result in a violation of employee privacy and should only be conducted when there are reasonable grounds to do so.
The best time to perform a criminal background check on a prospective employee is at the time of hiring, when an employer can make an offer of employment conditional on a satisfactory background check. Conducting background checks before hiring is imperative as an applicant does not have the contractual rights an employee may have.
Typically, if an employer has a legitimate interest in knowing whether an applicant has a criminal history, it may insist on getting this information from an applicant, provided it uses this information reasonably and within context. An applicant may choose to protect his or her privacy by not disclosing the record but may sacrifice the job opportunity as a result.
Social media and prospective employees
Employers frequently conduct social media searches of prospective employees to obtain additional information about an applicant. There are two types of social media — external sites such as Facebook, Twitter, LinkedIn, and personal blogs; and internal media such as employer blogs. The variety of social media sites continues to expand and the use of these sites is increasing exponentially.
With this wealth of potential information available, employers are engaging in what has been called “cybervetting,” which is essentially using social media to access information about potential applicants. Employers either perform Google searches of the applicant’s name or search for them on social media sites.
In a 2010 report, the Ontario Privacy Commissioner reported that 77 per cent of employers do online background checks, and 35 per cent of employers have eliminated applicants as a result of those checks. However, an employer may subject itself to complaints or claims if its “cybervetting” violates the code or the CRA. The best way for an employer to insulate itself from such a complaint or claim is to use objective criteria in evaluating a candidate.
A 2010 decision of the Human Rights Tribunal of Ontario in Kiyaga v. City of Windsorillustrates this well. In this case, the applicant was rejected for a position and complained it was because of a prohibited ground under the code. The city was successful in dismissing the complaint because it was able to demonstrate it only used objective “test scores,” which the applicant failed to meet.
Privacy is an ongoing concern for both employers and employees. In Ontario, there is no statutory protection of employees or prospective employees for personal information. Notwithstanding that, employees are afforded certain rights to privacy under employment contracts, policies or codes of conduct of the employer in addition to the protections provided under the code and the CRA.
In addition, in Jones v. Tsige, the Ontario Court of Appeal last year recognized a new common law cause of action called “intrusion upon seclusion,” after one employee accessed another employee’s private banking records.
The requirements of this new tort are:
- The defendant’s conduct must be intentional “which includes reckless”;
- The defendant must have invaded without lawful justification the plaintiff’s private affairs or concerns;
- A reasonable person must regard the invasion as highly offensive causing distress, humiliation or anguish; and,
- No proof of monetary harm is required.
The tips we give our employer clients in doing background checks are as follows:
- Only use social media if the information cannot be obtained by an interview;
- Develop both formal and informal information-gathering procedure;
- Access social media at the end of the procedure, i.e. as a background check and not as an evaluation tool;
- All information used in the hiring decision should only reference objective qualifications;
- Avoid subjective and discretionary criteria;
- The ultimate decision maker should not conduct a social media search;
- The social media searches should submit findings without any reference to any protected grounds;
- The employer should take screenshots of any information used to disqualify the applicant and preserve it as evidence in the event of a complaint;
- Validate and seek an explanation from the applicant for any negative information;
- If screening out certain behaviour, ensure that the behaviour is consistently applied to all applicants (e.g. drinking); and,
- Keep a detailed record of the information used and the reasons for a decision.
Now more than ever it is essential for an employer to conduct careful background checks to gather information about potential employees before making on offer. Failing to properly vet a potential employee can lead to far greater costs in the future.