July 13th, 2017 | Sterling
Technology has brought people together and made the world a much smaller place. But, in doing so, technology has stretched the limits of private space and what personal information can be shared with the masses. There are many laws, regulations and guidelines that govern the background screening industry. These rules aim to protect candidates when their personal information is used on an application and during background screening. To respect the rights of applicants and employees, organizations should be aware of their obligations and develop background checking policies that take into account their particular needs, risk tolerance and legal obligations.
It is important to have and follow policies and procedures that promote consistency and compliance in the workplace. Documenting your company’s processes for requesting, receiving and evaluating background checks will greatly improve your chances of successfully defending your program to individuals and regulatory bodies. Sterling Talent Solutions created the Background Screening Policy Considerations in Canada checklist to help organizations create a compliant background screening policy.
Keep in mind, the checklist and the best practices listed below are not a one-size-fits-all solution but are intended to provide a starting point to ensure proper consideration of the law and applicants’ and employees’ rights and expectations. It is crucial for a business to create a written background screening policy that meets their business needs in consultation with legal counsel.
Please NOTE: Sterling Talent Solutions is not a law firm and any materials or opinions presented are for informational purposes only and do not constitute legal advice. Please consult with your legal counsel to obtain advice with respect to your particular situation.
Privacy law generally limits collection of personal information to that which a reasonable person would consider necessary in the situation. Once the necessary information has been identified, a background checking provider can help find out how to get it. Each position, or category of positions, has a different risk profile. Some employees may have direct access to cash or valuable assets; some may have high-profile public exposure, and others will be the day-to-day face of an organization to customers. Additionally, each position may have specific occupational requirements. If the position requires a certain level of education, then that education should be verified. Once the risk profile for each position has been established, the types of checks that are needed can be documented in a policy.
Organizations should prepare to review and make decisions based on background check results. For each position or category of positions, some types of possibly derogatory information may automatically be disregarded, such as information that is more than a certain number of years old. Then, steps should be established to evaluate other information, including questions to ask the applicant to clarify the situation.
Privacy and human rights concerns come into play with the timing of a background check. When collecting sensitive information like criminal or credit history, it may be difficult to justify the collection of this information from people when there is no intention to hire them. Also, any background check that could result in illegal discrimination is best to conduct only after an offer is made, to avoid the appearance of discrimination in case the applicant is ultimately not hired for another reason. Checks that are less privacy invasive and carry less risk for discrimination, such as references or education and employment verifications, can be performed before an offer is made with little risk.
Early notification of an organization’s intention to collect personal information is vital so that applicants who may have questions or be uncomfortable with a background check can discuss their concerns and consider their options early in the process. Consent forms typically explain how applicants’ personal information will be used to complete the background check; however, they may not always tell applicants what will be done with the results once completed. Organizations should explain to an applicant exactly what checks will be ordered, the reasoning for those checks, and how decisions will be made. This assists in complying with privacy laws’ requirements for adequate notice and openness about privacy practices and may set uncomfortable applicants at ease. Being patient and willing to answer questions, directing the applicant to the right places for answers, or providing additional documentation to explain the process will go a long way towards building a trusting relationship with a future employee.
There are two potential problems with applicant-provided documents: first, they may be modified or forged; and second, they may have too much information on them. For example, if an applicant is asked to provide proof of employment, he or she may provide pay stubs or tax forms that have more personal information than required to verify the employment. If an applicant is asked to obtain a police check from local police, additionally, unnecessary details may be provided. Some police departments provide full accounts of all kinds of police information, including complaints, witness reports, or mental health interventions – none of which are likely to be relevant to the position.
Background checks are not perfect. Humans inevitably make mistakes and even the best databases contain errors. When an organization intends not to proceed with a hire based on a background check, it should let the applicant know in accordance with the requirements set out in the consumer reporting law in his or her province of residence. If there is an error, the applicant will be able to follow up with the source to rectify it.
The information obtained as part of the background screening process was obtained for that purpose and that purpose only. Privacy laws require that personal information only be used for the purpose for which it was collected or a compatible purpose.
Mark Sward, Sterling Talent Solutions Privacy Director, presented two very informative webinars about Canadian privacy and human rights laws. Both webinars, Employee Rights, Part 1: Privacy in Canada and Employee Rights, Part 2: Human Rights in the Workplace, are available for On Demand viewing. Find out more best practices for creating a background screening policy and how Canadian privacy and human rights laws affect the hiring process by downloading our white paper, Legal Considerations for Background Screening in Canada.
CTA White Paper: Legal Considerations for Background Screening in Canada
This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.
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