Employers who rely on police information checks to
assess the suitability of prospective employees may now have to
make do with less information.
In an investigation report released this month, the British
Columbia Information and Privacy Commissioner made recommendations
which will limit information disclosed by police departments in
employment-related police information checks.
Until recently, police departments in British Columbia have
included information about prior criminal convictions, outstanding
charges, contact with the police during an investigation (e.g., as
a suspect or witness), and apprehensions under the Mental
Health Act in employment-related police information checks.
These checks are done with the consent of the employee, for
employers and employees who are not covered by the Criminal
Records Review Act ("CRRA") (previously discussed
The Commissioner found that, although these checks can be a
valuable screening tool, the scope of information provided to
employers – particularly mental health information and
non-conviction information which has not been tested in court
– was more than was necessary, and not in compliance with
The Commissioner made the following key recommendations:
Police departments should stop releasing mental health
information in employment-related background checks.
Police departments should stop releasing non-conviction
information for positions where the employee is not working with
children or vulnerable adults.
Police departments should require employers to limit their
requests for information about convictions to specific risk
categories which are relevant to the person's employment, such
as Drugs and Alcohol, Sex, Violence and Theft and Fraud.
Government should require that the centralized office currently
responsible for processing criminal records checks under the
CRRA undertake all record checks for vulnerable sector
employees, not only for employers who receive provincial
What this means for employers
The Commissioner's recommendations will undoubtedly result
in significant changes to the information available to British
Columbia employers about prospective employees. We of course
recommend that all employers take a cautious approach to
pre-employment background checks and collect only the type and
amount of information reasonably required to start and manage the
employment relationship. In addition, in the absence of broader
police information checks, we recommend that employers who require
pre-employment background checks take the following steps:
Carefully consider what information is necessary to assess the
suitability of an employee and ensure a safe and secure workplace.
The type of information will vary depending on your business and
the employee's work, including his/her responsibilities, the
extent to which he/she works unsupervised or alone, and the
identity of those with whom the employee comes in contact.
Conduct background checks only at the final stage of hiring,
when making a conditional offer of employment. If necessary,
provide the candidate with an opportunity to provide more details
about a background check, to ensure the information you have
collected is accurate before making a decision.
Ensure that background check information is kept in a safe and
secure location and only shared with those who truly need to
Conduct comprehensive reference checks, and consider extended
probationary periods, performance management, supervision and other
measures to ensure a safe, secure and productive workplace.
The arbitrator's decision covered a number of issues including whether the termination was appropriate and whether the City had breached the grievor's human rights. The following, however, will focus on the privacy issue raised.
In my December 15, 2016 article, Federal Government's Cannabis Report: What does it mean for employers?, I noted the Report's1 suggestion that there was a lack of research to reliably determine when individuals are impaired by cannabis.
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