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When the Skeletons in the Closet Start to Rattle...!

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When the Skeletons in the Closet Start to Rattle...! by P.A. Neena Gupta and Lesley Love

When the Skeletons in the Closet Start to Rattle...! by P.A. Neena Gupta and Lesley Love

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  • 1. When the Skeletons in the Closet Start to Rattle … !By P.A. Neena Gupta and Lesley Love
  • 2. Overview1. Background Checks2. Credit Checks3. Misrepresentations on Resumes4. Disciplining for Off-Duty Conduct5. Employee conduct on Social Media6. Managing the Immigration Implications 2
  • 3. Background Checks• Background checks are a screening tool • Criminal Record • Credit Record • Academic • References• Significant “errors” on resume or applications • Exaggerated academic credentials • Inflated job titles or responsibilities • Lies about reasons for leaving previous jobs 3
  • 4. Obtain Consent to Background Check• Written consent required for: • Criminal background check • Credit checks • Confirmation of employment information from previous employer • Academic confirmation• Ensure consent broad enough to permit obtaining information from individuals other than named or specific employees 4
  • 5. Tales from the Crypt!Geraldine hired the perfect candidate afterchecking the references he supplied on hisimpressive resume.Employee ends up being a complete disaster.References were all false; friends at entry-level positions pretending to be managerial ordirector-level hire. 5
  • 6. Employment Contract• Make offer subject to satisfactory background checks• If background checks unsatisfactory, offer withdrawn or if employee has started work, grounds for termination• Indicate that any misrepresentation on the resume or application form constitutes grounds for termination with just cause 6
  • 7. Lying on a Resume• Is your offer letter conditional upon reference checks being made and passed?• Explicitly advise lying on resume grounds for termination• Do you perform thorough reference checks?• What if a candidate lies on their resume?• What if you don’t discover the lie until after the candidate is hired? • If an employee misrepresents their qualifications, it can constitute just cause for dismissal. • Is the misrepresentation “material”? i.e. was the qualification they lied about to have a key reason for you hiring them? 7
  • 8. Criminal Background Checks• Mandatory • Children • Vulnerable adults • Bonded employees• Highly Recommended • Handling cash or inventory • Managerial or supervisory employee 8
  • 9. Criminal Background Checks• Private background companies can do a “query” • Name and date of birth • Requires written consent (usually on company form) • Often require copies of 2 pieces of ID• Initial “query” based on employee name and date of birth• Can lead to false positives (how many John Smiths born on March 1, 1972 in Toronto?)• Will not catch people who have changed names (e.g. marriage)
  • 10. Tales from the Crypt!Jamie MacDonald, born November 1, 1972 inSydney, Nova Scotia was nearly fired from hisjob as a medical technician when a criminalbackground check showed NUMEROUSconvictions for fraud, assault, aggravatedassault. Employer confronted Jamie, whoindicated it was not him. 10
  • 11. Criminal Background Check• Only authoritative background check is “fingerprint” test• Can only be done at police station• 3 week to 3 month delay, depending on location• The good “Jamie” was cleared 11
  • 12. You Discover the Candidate/an Employee has a Criminal Record – What Next?• Employer can only consider criminal offences for which no pardon has been granted• However, if unpardoned, the candidate/employee has no protection under the Code; pardon not sufficient for immigration purposes• Some case law suggests that Code even protects against discrimination on the basis of pending charges• Should not consider provincial offences (such as highway traffic act) unless directly relevant
  • 13. Credit Checks• Why ask for one? • Is the employee going to be handling money? • Is the employee in a key financial position?• Employer’s are entitled to perform Credit Checks, but must comply with Consumer Protection Legislation.• 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• Have the candidate sign a consent before conducting the check• Be sure to keep the information received confidential
  • 14. Termination for Off-Duty Conduct• An employer must show a “nexus” between the employee’s misconduct and the employer’s “legitimate business interests.”• In Kelly v. Linamar, an employee was terminated days after being charged with possession of child pornography. • Grounds: the companies reputational loss in the community. • Linamar lead extensive evidence regarding its charitable work with children’s programs in the community. • The employee plead guilty a year and a half later.• Employee brought a wrongful dismissal claim against Linamar.
  • 15. Off-Duty Conduct – Criminal Offences• Criminal charge does not automatically mean just cause• Do not rush to judgment• Consider the nature of the offence • Is it related to the job? • Is it relevant to the performance of his or her job duties? • Is the position high profile? In the media? • Does the charge interfere with the employee’s ability to discharge position? (e.g. travel, time in jail)
  • 16. Termination for Off-Duty Conduct• The judge dismissed the claim, stating: • Linamar has over a long period of time built up a good reputation which it jealously protects. That reputation includes the promotion of its activities with young people outlined earlier. A company is entitled to take reasonable steps to protect such a reputation and the termination of Philip Kelly was just such a step. The employer has demonstrated just cause on far more than the balance of probabilities.• Interesting, the judge went on to note: • Subsequent to the decision to terminate two things happened which, had they happened earlier, would have strengthened the employer’s position even more. Mr. Kelly was eventually convicted of the charge of which he was merely suspected at the time of his termination and the identity of his employer which had been known only to others within the corporation became a matter of public record.• In other words, there was an element of risk involved. What would the consequences have been for the employer if he had been found not guilty?
  • 17. Consequences of Making False Allegation Against Employee• John Pate was the chief building official for the Townships of Galway and Cavendish from 1990-1999• Shortly after accepting a demotion following an amalgamation of the townships, he was accused by his new boss of stealing building permit fees• Told to resign or the police would be notified – Pate refused and was charged with theft• Acquitted at trial in 2002 where it was revealed that the employer had withheld evidence from the OPP, including an internal investigation prior to Pate’s termination that found he and others were innocent
  • 18. The Decision• Ultimately awarded $550,000 in punitive damages • Significant misconduct by the employer lasting over a lengthy period, including intentional withholding of exculpatory evidence • Devastating impact on employee’s life, including his marriage and prospects for future employability
  • 19. Use of Social Media• Are you “friends” with your employees on social media? • Lougheed Imports Ltd. (West Coast Mazda) v. UFCW Local 1518 • Employee making threatening posts on Facebook: • “Sometimes ya have good smooth days, when nobodys f**king with your ability to earn a living....and sometimes accidents DO happen…” • “All I Gotta say is they pissed off the WRONG GUY ....big time” • “west cost detail and accessory is a f***in joke…don’t spend your money there… ripped off a bunch of ppl I know.” • The Employee’s supervisor was “friends” with him, and monitored the conversation. Ultimately terminated his employment. 19
  • 20. Lougheed Imports Ltd. (West Coast Mazda) v. UFCW Local 1518• In upholding the terminations, the B.C. Labour Relations Board made the following findings: • The offensive comments made by the employee about his supervisor amounted to insubordination • The employee had over a hundred “friends” on Facebook, including co-workers and his supervisor. As such, he did not have any reasonable expectation of privacy when he posted on Facebook • He made comments damaging to the employer’s business and reputation. 20
  • 21. Lougheed Imports Ltd. (West Coast Mazda) v. UFCW Local 1518• Social Media can be just cause for termination: • Insubordination • Dishonesty • Conduct detrimental to employer• Social Media unlikely to be considered “private” if available fairly widely 21
  • 22. Social Media – Double-edged Sword• May learn of information that reveals too much information • Religious affiliation • Sexual orientation • Illness or disability • Family illness • Pregnancy/number of children• Exposes employer to accusation of discrimination 22
  • 23. Social Media – Double-edged Sword• Have social medial policy for HR• If using social media in recruitment or promotion, make sure person vetting person on internet knows what is relevant and not relevant• Ensure person making decisions not person surfing internet and is only given relevant information 23
  • 24. Immigration Implications• Foreign nationals are inadmissible to Canada due to past criminal activity if they were convicted of an offence in Canada or were convicted of an offence outside of Canada that is considered a crime in Canada• Canada does allow foreign nationals with criminal records into Canada under certain circumstances 24
  • 25. Overcoming Inadmissibility• What to do if you have a foreign national with a criminal record, who needs to come to Canada? • Temporary Resident Permit • Deemed Rehabilitation • Rehabilitation 25
  • 26. Temporary Resident Permit• If criminally inadmissible but have a valid reason to travel to Canada, a foreign national may be issued a TRP • Less than 5 years has passed since the end of the sentence and/or • Benefit to Canada outweigh the risk of re-offending 26
  • 27. Temporary Resident Permit• Reasons for a TRP to be granted • Work for employer either abroad or in Canada that benefits economy • Cultural benefit to Canada • Personal reasons – spouse, children, ill relative• Minor crime is typically not a factor 27
  • 28. Temporary Resident Permit• A permit will be granted for the length of time a foreign national is required in Canada (i.e. 1 year work permit = 1 year TRP)• TRP’s must typically be applied for at the Consulate, in certain circumstances a TRP may be requested and granted at the port of entry 28
  • 29. Deemed Rehabilitation• Under the Immigration and Refugee Protection Act, Deemed rehabilitation means that enough time has passed since the conviction and conclusion of the sentence that the foreign national is considered absolved of their crime 29
  • 30. Deemed Rehabilitation• Considerations for Deemed Rehabilitation: • the nature of the crime • how much time has passed since completion of sentence • number of crimes committed• Deemed Rehabilitation is only an option if the crime would be punishable by a maximum term of less than 10 years 30
  • 31. Rehabilitation• Rehabilitation removes the criminal inadmissibility of a foreign national• If foreign national is not eligible to be deemed rehabilitated you must apply for individual rehabilitation to enter Canada• Rehabilitation means that the foreign national leads a stable life and that is not likely to commit new crimes 31
  • 32. Rehabilitation• To apply for Rehabilitation: • At least 5 years must have passed since the completion of sentence • An application must be submitted to a Consulate • Current processing times are approximately 2 years 32
  • 33. Overcoming Inadmissibility• Documents required: • Court records • Evidence of completion of sentences • Police clearance reports • Reference letters • Invitation letter • Photos • Fee 33
  • 34. Canadian Pardon• If the foreign national has a criminal conviction from within Canada a Pardon (now a Record Suspension) will be required prior to re- admittance to Canada• Must carry pardon with them when entering Canada 34
  • 35. Canadian Pardon• In order to be considered for a record suspension under the Criminal Records Act, a specified period of time must pass after the end of the sentence imposed• The usual waiting period for offences: • ten (10) years if prosecuted by indictment • five (5) years for summary convictions 35
  • 36. Criminal Ineligibility in the U.S.• Like Canada, foreign nationals with a criminal history will be denied entry into the U.S.• Not all criminal convictions create an ineligibility to enter the U.S., but any past criminal record must be declared 36
  • 37. Waiver of Ineligibility• If you are ineligible to enter the United States, you may apply for a waiver of ineligibility• Must be done well in advance of any planned entry• Many of the same documents are required 37
  • 38. Overcoming Inadmissibility• Foreign nationals who are inadmissible due to a criminal past may be allowed entry• Plan ahead, ask questions and be prepared 38
  • 39. Thank You P.A. Neena Gupta Gowling Lafleur Henderson LLP Barristers & Solicitors 50 Queen Street North Suite 1020 Kitchener, ON, N2H 6M2 Direct Tel: 519.575.6910 Direct Fax: 519.571.5001 Email: neena.gupta@gowlings.commontréal ottawa toronto hamilton waterloo region calgary vancouver beijing moscow london
  • 40. Thank You Lesley Love Gowling Lafleur Henderson LLP Barristers & Solicitors 50 Queen Street North Suite 1020 Kitchener, ON, N2H 6M2 Direct Tel: 519.569.4562 Direct Fax: 519.569.4062 Email: lesley.love@gowlings.commontréal ottawa toronto hamilton waterloo region calgary vancouver beijing moscow london