The 5 W's of police record checks

In this day and age, we see an increased recognition for the need to respect employee's wellbeing in the workplace. This includes a renewed alertness to health and safety obligations, human right considerations, as well as employee privacy rights in the workplace. Yet sometimes these considerations require careful balancing.

This has arisen with respect to police record checks. We are receiving an uptick of questions about when an employer can and cannot ask for a police record? What can do they do with the information collect? How does this interact with human right and privacy considerations?

In this blog post, we go over the "5 W's" of police record checks so you can better understand your rights and obligations regarding these checks in the workplace.

What?

A police record check is a check of an employee's history to see if they have been convicted of a crime. In Ontario, police record checks are governed by the Police Record Checks Reform Act, which sets that standards that govern how police record checks are conducted and what is included in the check.

When?

An employer may want an employee to undergo a police record check at different times during the employment relationship.

New employees:

First, and most common, is at the time of hiring the employee. An offer of employment may be conditional on an employee passing a police record check. Requiring a new employee to undergo such a check is lawful, provided that the employer does not adversely treat the candidate if they find out (a) there have been criminal convictions which have been pardoned under the Criminal Records Act (Canada) and not revoked, or (b) provincial convictions such as driving/traffic offences. In Ontario, however, this kind of information is not typically revealed on a basic police record check.

Existing employees:

Second, an employer may want or need an existing employee to undergo a police record check at various times throughout their employment. Requiring an existing employee to undergo a police record check can be more tricky, however. Unless there is a provision in the employee's contract that permits the employer to periodically perform such checks, there may be risks, including:

• The request itself could potentially be viewed as a new unilateral requirement, triggering constructive dismissal risks. This risk is not specific to police record checks; it arises any time an employer imposes a significant new requirement or condition of employment on existing employees.
• To the extent action is taken in reliance on the new unilateral requirement that adversely affects the employee, the risks increase. This would apply if an employee faced consequences for refusing to undergo a check, or more complex, because of a past or present record.
• Specifically, on the latter, it could raise further human right concerns in some jurisdictions. For example, the Ontario Human Rights Code prohibits discrimination on the basis of a "record of offences", which includes criminal offences which have been pardoned or provincial offences. As mentioned above, this kind of information is not always revealed with police record checks, however, were it to be disclosed, an employer should not treat the employee adversely because of it.

Why?

Employers may wish to perform police record checks for a variety of reasons, including:

• The employer operates in an industry where they may be working with vulnerable people;
• Clients or suppliers of the employer require that the employer's employees undergo a police record check of a condition of doing business; or
• The employer simply wants more information on the individuals is it hiring.

New employees:

It is important to remember that employers are free to require new employees consent to a police record check as a condition of employment, regardless of the why.

Existing employees:

The why may become relevant, however, if an employer is imposing a new requirement that existing employees undergo police record checks. For example,

• If the employer is taking on a project within a vulnerable sector where employees will be in a position of trust or authority over vulnerable people, that may be a bona fide reason to impose the new requirement on those employees. While this does not eliminate all risk, it may make it easier to justify the requirement.
• If the employer is taking on a project where a client, supplier or other third-party requires the employer to perform a police record check, the employer may want to consider voluntarily asking the employees who would work on the project to undergo a police record check. If they refuse, no consequences should be imposed, they simply would not be assigned to perform work on the project.
• If the employer simply wants to impose the new requirement, and there is no external reason, it may be harder to justify. In that situation, the employer may want to consider rolling out the requirement on a go-forward basis for new hires only.

Where?

Different considerations arise when performing police record checks in different jurisdictions, as well as for different industries. For example, in Ontario, the Police Record Checks Reform Act permits only three kind of record checks for most sectors – (1) a criminal record check, (2) a criminal record judicial check, or (3) a vulnerable sector check. However, employees working in certain industries, such as education, child care, justice, or certain roles within the public service, may be subject to different kinds of checks which may disclose additional information. Likewise, other provinces may have different rules and requirements regarding police record checks.

How?

In Ontario, a police record check can be obtained from a municipal police service, First Nations Police service or the Ontario provincial police, as well as from private businesses that are authorized to provide police record checks. It is important to note that in most cases an employer cannot obtain a check without the employee's written consent and the employee will receive a copy of the results of their record check in advance of the employer.

Once a check has been performed, employers should give careful thought to how they use and store the information obtained. In addition to the human rights considerations mentioned above, employers should ensure that the information is held confidentiality and only disclosed to those who need to know. This kind of sensitive information should be held separate and apart from an employee's HR file which may be more widely accessed.

Takeaways:

While employers may lawfully perform police record checks in Ontario and have good reason for doing so, they should be approached with care. Employers are encouraged to carefully consider why they need this information, and ensure safeguards are in place to ensure the process complies with human rights requirements and privacy concerns.

Employees and employers alike are encouraged to seek legal advice when dealing with police record checks in the workplace. Lee Workplace Law would be happy to answer any questions you might have.