Background Checks Why employers conduct background checks?Many employers see background checks as a means to verifywhether candidates really are who they say they are.Employers rely on background checks to:• verify information obtained from the candidate from outside sources• obtain insight into trustworthiness of candidate• assess whether candidate likely to steal or commit fraud;• assess whether the candidate possesses the skills necessary to handle financial matters
Background ChecksIf background checks are not handled properly, canlead to liability for employersTwo main areas where employers can run afoul ofthe law: 1. Violation of Human Rights Legislation 2. Violation of Privacy Laws
Background Checks Overview• Review Different Types of Background Checks • Process • Use of information obtained from background check • Best practices (Do’s and Don’ts) for completing background check • Human Rights and Privacy Issues and Risks
Background Reference ChecksDifferent types of Background Reference Checks• Criminal Records Check• Credit Check• Reference Check• Driver’s Record Check• Social Media Check
Criminal Record Check THE PROCESSNames based search - no match no further inquiry conductedIf there is a match to a criminal record, an inconclusive resultwill be returnedTo get further details, candidate required to attend at aCanadian Police Information Centre (CPIC) Agency to befingerprinted after which a certified criminal records check willbe undertaken.Fingerprint based searches can take up to 120 days, and thereis no means by which the process can be expedited.
Criminal Record Check USE OF INFORMATION• Varies by jurisdiction• Governing law – Human Rights Legislation 1. Alberta, Sask, Manitoba, Nova Scotia, Nfld, New Brunswick: no limit on use of information. Employer can refuse employment based on any criminal conviction. 2. Ontario, NWT, Nunavut – employer can only consider criminal offences for which a pardon has not been granted. Provincial offences may also be considered only if related to a bona fide occupational requirement 3. British Columbia, Yukon, PEI – permit consideration of criminal or summary convictions only if related to intended employment 4. Quebec – combination of 2 and 3
Criminal Background CheckTo conduct a Criminal Background Checkcandidate must provide: • 2 valid pieces of identification; • all names ever used; and • informed consent.
CAUTION: information obtained in order to complete a CriminalRecords Check may reveal characteristics of the candidate that areprotected by human rights legislation, e.g. marital status, age,disabilityIf receive information related to a characteristic protected by rightslegislation, employer is presumed to have considered thisinformation during the hiring processBurden is on employer to rebut this presumption = heavy burden
Criminal Background Check BEST PRACTICESDO weigh the need for the information relating to criminal convictionswith the risk of the disclosure of information related to a prohibitedground under human rights legislationDO mitigate the risk of disclosure of information related to aprohibited ground by (1) asking the candidate to obtain his/her owncriminal background check, (2) hiring an agency to collect theinformation and complete the criminal background check; and/or (3)ensure that the person within your organization responsible forcriminal records checks is not the same person that makes the hiringdecisionsDO consider whether the Criminal Background Check will becompleted prior to the proposed start date for the candidate
Criminal Background Check BEST PRACTICES (cont’d)DO obtain the prior written consent of the candidate to conductcriminal background check on hiring and during employmentDO consider for hiring purposes only criminal offences for which apardon has not been granted and which relate to the intendedemployment of the candidate regardless of jurisdictionDO not target certain candidates for background checks
Credit Checks THE PROCESS• governed by provincial consumer protection legislation• may require notification or consent of candidate and identification of the consumer reporting agency that will be conducting the credit check.• for example, in Ontario, the Consumer Reporting Act (CRA) provides: • credit information may be released to an employer if the employer intends to use the information for employment purpose and therefore no consent from the candidate is required; however • a candidate must be notified in writing, in bold type or underlined and in letters at least 10 point in size, before the check is done. • if the candidate asks, they must be given the name and address of the consumer reporting agency supplying the report.
Credit Check PROCESS (cont’d)In the event that an employer obtains credit information on acandidate and subsequently rescinds the job offer, regardlessof the reason, the CRA requires the employer to deliver to theperson:• the nature and source of the information where the information is furnished by a person other than a consumer reporting agency; or of the name and address of the consumer reporting agency, where the information is furnished by a consumer reporting agency; and• notice to the candidate of his/her right to request the information obtained by the employer
Credit Checks USE OF CREDIT CHECK INFORMATIONA credit check will provide employer information on the candidate’scredit historyPrimary reason employers complete credit checks is for theft andfraud preventionNo human rights related restrictions on use of credit informationDepending on jurisdiction, privacy laws may limit use of credit checkinformation when making hiring decisions
Credit Checks Mark’s Work Wearhouse Ltd. (Alberta)Turned down a worker who applied for a salesassociate position because credit report containednegative informationBased on Alberta’s privacy legislation, Court heldcollection of information not reasonably required toassess applicant’s ability to perform duties of job ordetermine whether had a tendency toward committingtheft or fraud
Credit Checks BEST PRACTICESDON’T conduct credit checks unless a candidate is beingconsidered for a position that requires them to handle money orif there is some other reason why the candidate’s credit rating isrelevant to the position in questionDO obtain the candidate’s written consent to conduct the checkeven if legislation may not require that you obtain such consentDO keep any credit information obtained strictly confidential; andDON’T disclose the information to third parties without thecandidate’s consent.
Credit Checks BEST PRACTICES (cont’d)DO assess whether there are other ways, such asextensive reference checks, to get the information youneed to assess a candidate’s suitability for a position.DON’T be too quick to judge candidates that have a poorcredit history. Give them a chance to explain their poorcredit score.
Credit Checks Many people consider credit checks as an unnecessary invasion of privacy, and soemployers should only perform credit checks insituations where it is reasonably necessary for the requirements of the position.
Reference Checks THE PROCESSRelatively easy to perform if contact information forreferences provided by candidateEmployer will speak with candidate’s previousemployers and/or personal references
Reference Checks USE OF INFORMATIONTo verify that what the candidate is saying about experienceand abilitiesMay also want to know about aspects of employment historynot discussed with candidate (e.g. attendance, absenteeism) BE CAREFULDO NOT ask questions which either directly or indirectly relateto characteristics of the candidate that are protected byhuman rights legislation, e.g. marital status, age, disability.
Reference ChecksCAUTION: If you discuss with a former employer,for example, a candidate’s history of illness or injury,request for religious accommodation,accommodation based on family status etc. and youdecide not to hire, candidate may allege that thisinformation caused the you to refuse employment inbreach of human rights legislation.DON’T assume that what you discuss during thereference process will not get back to the candidate
Reference Checks BEST PRACTICESAlthough consent will be deemed to be given if contact information isprovided, DO obtain the candidate’s express consent to obtain references toavoid an argument that he or she was unaware that such information wouldbe confirmedALWAYS obtain express consent that you are free to contact currentemployer. Contacting current employer could jeopardize currentemployment and lead to liabilityDON’T ask questions which relate to a characteristic protected by humanrights legislation (e.g. disability, religion, age, family status). Once you havethe information you are presumed to have considered it during hiringprocessDO assign someone other than the person making the final hiring decisionto check referencesDO train the person conducting reference checks to relay only the “relevant”information to the person making the final hiring decision
Driver’s Record Check PROCESSEmployers can conduct various searches regarding candidate’s driving record• Statement of driving record (3 year snapshot of a driver’s history)• Driver’s licences history• Statement of driving record (5 year restricted)
Driver’s Record CheckCAUTION: Driver’s record will tell you candidate’sage (protected characteristic under human rightslegislation) and in Ontario, Highway Traffic ActoffencesIf you decide not to hire the candidate because ofthe results of a driver’s record search, candidatecould allege you relied on information regarding ageor previous provincial offences in breach of humanrights legislation
Driver’s Record Check BEST PRACTICESDON’T conduct driver’s record check unlesscandidate is being considered for a position in whichoperating a vehicle is an essential duty of the jobDO obtain consent of candidate prior to conductingdriver’s record check even if candidate’s consent isnot required to access the information
Social Media Checks• An increasingly popular and informal type of background check is a social media check• There are many ways that employers can search for social media content about an individual using search engines on: Information from blogs using customized search engines like Google blogs search (www.google.com/blogsearch). Social networking sites (Facebook), and Niche sites target certain regions (http://mixi.jp ), activities (www.couchsurfing.com/), ethnic groups (www.blackplanet.com/) or faiths (http://muxlim.com/). micro-blogging sites like Twitter file sharing sites (including photographs and video) such as www.flickr.com and www.dropbox.com 27
Social Media• Perceived Benefits of Social Media Background Checks • Faster • Simpler • Seemingly public source of information• 90% of recruiters use social media background checks to screen out candidates based on information they view on social media sites 28
Privacy and Social Media• The fact that the individual posted the information on social media site does not mean is it not personal information• Personal Information is information about an identifiable individual such as their name, address, gender, etc.• Individuals have an expectation of privacy and assume that their personal information will not be collected by an organization without their consent.
Privacy Legislation• In several jurisdictions in Canada (BC, Alberta and Quebec), provincial privacy legislation governs the collection, use and disclosure of employee personal information by an organization. If the applicant resides in any of those jurisdictions, then the privacy legislation of those provinces will apply.• If the applicant resides in Ontario, private sector organizations that collect, use or disclose personal information are governed by the federal privacy legislation which does not cover employee personal information. This may change if Ontario adopts its own privacy legislation. DO: treat employee personal information in Ontario as if it is subject to privacy legislation similar to the provincial legislation in Alberta, BC and Quebec. 30
10 Privacy Principles of Canadian Privacy Legislation• Privacy legislation in Canada is based on 10 privacy principles, which outline responsibilities that private sector organizations must follow when collecting personal information. 1. Accountability 2. Identifying Purposes 3. Consent 4. Limiting Collection 5. Limiting Use, Disclosure, and Retention 6. Accuracy 7. Safeguards 8. Openness 9. Individual Access 10. Challenging Compliance• Some of these may be difficult to comply with when social media checks are performed given the fact that information is collected indirectly, and not captured as a written record. 31
Principle 2 - Identifying Purposes• The purposes for which personal information is collected shall be identified by the organization at or before the time the information is collected.• DO: Advise applicants that you will be performing social media background checks in your background check consent form or conditional offer.• DO: Be clear what you are checking and what the purpose is (that is, what you are trying to confirm). Assess other, less intrusive measures that meet the same purposes.• DO: Ensure that your employees doing the checks are trained to only collect and use the information for the identified purpose.• DON’T: Wait until after the social media check has been conducted to advise the individual of the check and the purpose. 32
Principle 3 - Consent• The knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where inappropriate.• Individuals may revoke consent.• DO: Ensure your documentation (application form, background check consent form, or conditional offer) include a consent (to be signed by the applicant) to the background check.• DO: Remember you may see personal information of others (not just the applicant). Do you have that individual’s consent?• DON’T: Use any information obtained during this check for a hiring decision if the individual revokes their consent.
Principle 4 - Limiting Collection• The collection of personal information shall be limited to that which is necessary for the purposes identified by the organization. Information shall be collected by fair and lawful means.• Organizations shall not collect personal information indiscriminately. Both the amount and the type of information collected shall be limited to that which is necessary to fulfill the purposes identified.• DO: Consider the types of information you will be able to view and collect using social media and determine if you will be able to limit the “collection” to information only required for the hiring decision.• DO: Consider separating the background check from the hiring decision.
Principle 5 - Limiting Use, Disclosure, and Retention• Personal information shall not be used or disclosed for purposes other than those for which it was collected, except with the consent of the individual or as required by law.• Personal information shall be retained only as long as necessary for the fulfillment of those purposes.• Personal information that is no longer required to fulfill the identified purposes should be destroyed, erased, or made anonymous.• DO: Ensure you have practices and polices in place to meet these requirements (for example, training of staff, confidentiality agreements, limited access controls, data retention polices).
Principle 6 - Accuracy• Personal information shall be as accurate, complete, and up-to-date as is necessary for the purposes for which it is to be used.• DO: Evaluate whether or not you feel that information from social media is accurate, complete, up-to-date in terms of the purpose (i.e. a hiring decision).• DON’T: Treat all social media sites as equal in this respect.
Principle 7 - Safeguards• Personal information shall be protected by security safeguards appropriate to the sensitivity of the information.DO: Take your obligation to safeguard personal information as seriously as you would with any other background check information.DON’T: Assume that given the nature of this medium, personal information is not really being “collected” – viewing information is an indirect collection of personal information.DO: Ensure that the person performing the checks is covered by appropriate contractual non-disclosure requirements and appropriate training.DO: If a record is made of what has been viewed, consider the security safeguards that may be required based on the sensitivity of the information collected.
Principle 9 - Individual Access Upon request, an individual shall be informed of the existence, use, and disclosure of his or her personal information and shall be given access to that information. An individual shall be able to challenge the accuracy and completeness of the information and have it amended as appropriate.DO: Create a record of what was viewed.DO: Be aware that applicants who may not have been offered a position (or whose conditional offer was revoked as a result of the check) may wish to review the record, and have the record amended to be more accurate.DO: Consider building this into the process of hiring another candidate.
Legal Action for Invasion of Seclusion• In addition to privacy legislation, Ontario now has a tort of ‘invasion of seclusion’. A court will find that an individual or organization has committed this tort where the intrusion into an individuals private affairs was: • Done without lawful justification, • Highly offensive, causing distress, humiliation and/or anguish to the affected individual, and • Intentional or reckless.• Damage awards can be up to $20,000 per infringement.DO: Consider the potential for claims of invasion of seclusion as part of your overall assessment of whether or not social media checks are necessary or warranted for a particular position.DO: Ensure that policies, procedures and documentation are in place to substantiate hiring decisions based on merit.
Should you do Social Media Background Checks?• Consider privacy principles when deciding if you want to incorporate social media checks in your hiring decisions.• Perform a privacy impact assessment, which reviews each of the 10 privacy principles to identify the risks associated with the collection and use of this personal information, including risks resulting from actions taken based on inaccurate information, and also identifies whether the organization has the policies, procedures and controls in place to comply with privacy principles.• Consider what information you are looking for and why you think social media can provide you information you cannot obtain elsewhere. 41
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