background checks 2012
TRANSCRIPT
Do's and Don'ts of
Background Reference
Checks
October 10, 2012
Presenters
2
Elisa Scali
Partner, Ottawa
t 613-786-0224
Katerina Kouretas
Associate, Ottawa
t 613-783-8982
Background Checks
Why employers conduct background checks?
Many employers see background checks as a means to verify whether 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 Checks
If background checks are not handled properly, can
lead to liability for employers
Two main areas where employers can run afoul of
the 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 Checks
Different types of Background Reference Checks
• Criminal Records Check
• Credit Check
• Reference Check
• Driver’s Record Check
• Social Media Check
Criminal Record Check
THE PROCESS
Names based search - no match no further inquiry conducted
If there is a match to a criminal record, an inconclusive result will be returned
To get further details, candidate required to attend at a Canadian Police Information Centre (CPIC) Agency to be fingerprinted after which a certified criminal records check will be undertaken.
Fingerprint based searches can take up to 120 days, and there is 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 Check
To conduct a Criminal Background Check
candidate must provide:
• 2 valid pieces of identification;
• all names ever used; and
• informed consent.
CAUTION: information obtained in order to complete a Criminal Records Check may reveal characteristics of the candidate that are protected by human rights legislation, e.g. marital status, age, disability
If receive information related to a characteristic protected by rights legislation, employer is presumed to have considered this information during the hiring process
Burden is on employer to rebut this presumption = heavy burden
Criminal Background Check
BEST PRACTICES
DO weigh the need for the information relating to criminal convictions with the risk of the disclosure of information related to a prohibited ground under human rights legislation
DO mitigate the risk of disclosure of information related to a prohibited ground by (1) asking the candidate to obtain his/her own criminal background check, (2) hiring an agency to collect the information and complete the criminal background check; and/or (3) ensure that the person within your organization responsible for criminal records checks is not the same person that makes the hiring decisions
DO consider whether the Criminal Background Check will be completed 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 conduct
criminal background check on hiring and during employment
DO consider for hiring purposes only criminal offences for which a
pardon has not been granted and which relate to the intended
employment of the candidate regardless of jurisdiction
DO 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 a candidate and subsequently rescinds the job offer, regardless of the reason, the CRA requires the employer to deliver to the person:
• 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 INFORMATION
A credit check will provide employer information on the candidate’s
credit history
Primary reason employers complete credit checks is for theft and
fraud prevention
No human rights related restrictions on use of credit information
Depending on jurisdiction, privacy laws may limit use of credit check
information when making hiring decisions
Credit Checks
Mark’s Work Wearhouse Ltd. (Alberta)
Turned down a worker who applied for a sales associate position because credit report contained negative information
Based on Alberta’s privacy legislation, Court held collection of information not reasonably required to assess applicant’s ability to perform duties of job or determine whether had a tendency toward committing theft or fraud
Credit Checks
BEST PRACTICES
DON’T conduct credit checks unless a candidate is being
considered for a position that requires them to handle money or if there is some other reason why the candidate’s credit rating is relevant to the position in question
DO obtain the candidate’s written consent to conduct the check even if legislation may not require that you obtain such consent
DO keep any credit information obtained strictly confidential; and
DON’T disclose the information to third parties without the candidate’s consent.
Credit Checks
BEST PRACTICES (cont’d)
DO assess whether there are other ways, such as
extensive reference checks, to get the information you
need to assess a candidate’s suitability for a position.
DON’T be too quick to judge candidates that have a poor
credit history. Give them a chance to explain their poor
credit score.
Credit Checks
Many people consider credit checks as an
unnecessary invasion of privacy, and so
employers should only perform credit checks in
situations where it is reasonably necessary for
the requirements of the position.
Reference Checks
THE PROCESS
Relatively easy to perform if contact information for
references provided by candidate
Employer will speak with candidate’s previous
employers and/or personal references
Reference Checks
USE OF INFORMATION
To verify that what the candidate is saying about experience and abilities
May also want to know about aspects of employment history not discussed with candidate (e.g. attendance, absenteeism)
BE CAREFUL
DO NOT ask questions which either directly or indirectly relate to characteristics of the candidate that are protected by human rights legislation, e.g. marital status, age, disability.
Reference Checks
CAUTION: 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 you
decide not to hire, candidate may allege that this
information caused the you to refuse employment in
breach of human rights legislation.
DON’T assume that what you discuss during the
reference process will not get back to the candidate
Reference Checks
BEST PRACTICES
Although consent will be deemed to be given if contact information is provided, DO obtain the candidate’s express consent to obtain references to avoid an argument that he or she was unaware that such information would be confirmed
ALWAYS obtain express consent that you are free to contact current employer. Contacting current employer could jeopardize current employment and lead to liability
DON’T ask questions which relate to a characteristic protected by human rights legislation (e.g. disability, religion, age, family status). Once you have the information you are presumed to have considered it during hiring process
DO assign someone other than the person making the final hiring decision to check references
DO train the person conducting reference checks to relay only the “relevant” information to the person making the final hiring decision
Driver’s Record Check
PROCESS
Employers 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 Check
CAUTION: Driver’s record will tell you candidate’s
age (protected characteristic under human rights
legislation) and in Ontario, Highway Traffic Act
offences
If you decide not to hire the candidate because of
the results of a driver’s record search, candidate
could allege you relied on information regarding age
or previous provincial offences in breach of human
rights legislation
Driver’s Record Check
BEST PRACTICES
DON’T conduct driver’s record check unless
candidate is being considered for a position in which
operating a vehicle is an essential duty of the job
DO obtain consent of candidate prior to conducting
driver’s record check even if candidate’s consent is
not 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
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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
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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.
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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.
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.
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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.
Social Media Checks and Password Requests
• It is contrary to the terms of use agreements of many social media sites for users to share their password information with another party. For example, Facebook’s Statement of Responsibilities states that a user will not share his or her password, or let anyone else access their account.
• The Statement of Responsibilities states that you will not solicit login information or access an account belonging to someone else – this may be an issue if your organization has a Facebook page.
• DON’T: Ask for passwords to gain access to private pages of applicants, or ask to “friend” and applicant.
• DO: Limit your searches to information available without the use of a password.
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.
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Thank You
montréal ottawa toronto hamilton waterloo region calgary vancouver beijing moscow london
Elisa Scali
Tel: (613) 786-0224
Katerina Kouretas
Tel: (613) 783-8928