Criminal Background Checks: Hiring Decisions and Human Rights

By Michelle Morra-Carlisle 

The reason for a criminal background check is inevitably to answer one question: Will this candidate be a security risk to my organization? While no one can tell for sure whether a person will have the motive or opportunity to commit a crime in the future, a person’s past behaviour is often a reliable risk indicator.

Criminal background checks have only been common practice among Canadian employers over the last decade, since 9/11, and many are still learning about the process and what to do with the results. What if the search reveals a “not clear,” meaning the job candidate might have a criminal record? In the interest of both the company and the candidate, employers must know their responsibilities under the Occupational Health and Safety Act and Human Rights Code.

Protect the Company
No one wants to hire someone who will be a security risk to company property or a safety risk to the other employees.

“Hiring a person with a serious criminal record exposes your other employees, your company assets, your clients and quite frankly, your corporate reputation to a serious security risk,” says Dan Fallows, national director at Garda Pre-Employment Screening Services.

Under Canadian occupational health and safety legislation, employers have a responsibility to ensure a safe working environment. To knowingly hire someone who has a history of violent behaviour could be considered a breach of that responsibility. What if a company hired a carpet cleaner who ended up assaulting one of the staff? “In the U.S., that would likely result in a “negligent hiring” lawsuit, something not yet seen in Canada,” Fallows says. “But the same could happen here.” 

He recommends a few measures of due diligence before the criminal record search. “Have your policy to back you up, know the Human Rights legislation for your jurisdiction, and follow your policy,” he says.

Protect the Candidate
Employers may hire whomever they wish. That said, a decision not to hire someone purely because he or she has or may have a criminal record is discrimination under the Human Rights Code. Fortunately, the difference between discrimination and a legally responsible hiring decision is fairly straightforward: have a policy. If the company clearly states in a written policy how it will proceed with criminal background checks and deal with the results, there should be no confusion or suspicion of unfair treatment when the time comes to choose a candidate.

Each position carries with it various degrees of security risks. To avoid accusations of discriminatory practice, Fallows says, use the criminal record information only in a way that’s applicable to the position being applied for. “If the job involves working with others and the candidate has no history of violent crime but did something at age 20, such as trespassing, that really has no bearing on his or her ability to do a good job,” he says. “If the candidate trespassed 20 times in the last five years, however, that’s a whole other degree of risk.”

Don’t Miss Out on a Star Employee

Remember that a “not clear” could mean any type of conviction. So, before ruling out the candidate, employers are strongly encouraged to find out more – especially given that 10 per cent of Canadians have a criminal record (that’s roughly the population of Alberta).

Hilary Predy, associate vice president, Business Solutions at the Calgary office of Adecco Employment Services Ltd., says it’s never easy to say no to a potentially great hire, especially in a limited labour market. She routinely orders criminal record searches for job candidates, while always aiming for the best fit and seeing the person as a whole.

“We are always mindful that because a person has a charge in their past doesn’t necessarily reflect on their ability to do a job well,” she says.

At Adecco, once a result comes back no clear, staffing coordinators address it with the individual. Asked if he or she has anything to share that may be pertinent, it’s then up to the candidate whether or not to declare any past convictions.

Besides an important source of data, a criminal record search also serves as an honesty check. More often than Fallows would like to see, people say they don’t have a criminal record and then the search results say otherwise. “Why?” he says, “Because they simply do not believe anyone will check and unfortunately in a lot of cases they are correct.”

When is a Candidate a Security Risk? Read the supplementary article now.

Michelle Morra-Carlisle is a freelance journalist who has written extensively on HR matters. Dan Fallows is National Director at Garda Pre-employment Screening and is responsible for the overall operations and business development of the division. For more information about Garda please contact dfallows@garda.ca, 416.915.9500 x3770.

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Comments (7)

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  1. J. Talbott says:

    “That said, a decision not to hire someone purely because he or she has or may have a criminal record is discrimination under the Human Rights Code. ”

    One small twist on this: The Canadian Human Rights Act only protects convictions for which a pardon has been granted. Readers should consult their relevant law (provincial or federal) before relying on the above statement, which seems focused on provincially-regulated employers in Ontario.

  2. Normally I do not read post on blogs, but I wish to say that this write-up very compelled me to try and do so! Your writing style has been surprised me. Thanks, very great article.

  3. Drew Freeman says:

    It is simple….Criminal record checks in any form should be against the law and punishable if asked by an employer.

    If they continue them, then to make it fair then all those without criminal records should undergo lie detectors and other forms of assessments to see if they also are a threat.

    I wonder how many employees that cause trouble or steal did not have a criminal record when hired?

    There is a statistic ratio I would like to see.

  4. ‘ A company may not ask about any arrests that did
    not lead to convictions. They need to know that the people who receive this
    information do not have any past criminal history so that identity theft concerns won’t be a problem.

    You do not have to hire an attorney to do this for you, but it may be worth
    it.

  5. mike says:

    With so many employers that are checking for criminal records, it promotes recidivism for ex-convicts. If ex-convicts can’t work, how can we expect them to be good citizens? This being said, some employment positions should require specific checks. Examples:1- Schools, daycares and retirement homes should check for any sexually related crimes. 2- Banks should check for theft and fraud. 3- Cooks should be checked for mass murder by poisoning. 😉

    We are all just products of our environment. Sometimes it is better to give a bad person a good environment to set them straight. Remember the movie twins?

  6. Maggie Allen says:

    You make a good point about searching through a candidate’s criminal record in order to protect the company. In a way, you can compare the candidate to someone who is looking for car insurance. When that person has a history of getting into accidents, it is possible for the insurance company to drop them, or raise their prices in order to accommodate that larger risk. So, it makes sense for other businesses to do something similar for potential employees.

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