Conducting background checks on candidates in Canada

Due diligence is an important part of any potential new employment relationship. For the employee, this usually means researching the company online, reading reviews or perhaps talking to friends or acquittances who have worked there previously. For employers, it can be a little more difficult - candidates don't usually come with online reviews. For both parties, however, it is important that the candidate is right person for the job and well-suited to the corporate culture. For those reasons, many employers elect to perform background checks on potential new hires. These background checks are aimed at gathering objective or third-party information about the candidate that goes beyond what might be highlighted in a resume or divulged by the candidate in an interview.

In this blog post, we explore some of the common background checks performed in Canadian workplaces and when during the hiring process they should occur.

Pre-offer checks:

Reference checks

Reference checks are an often-used method for employers to learn more about a candidate's professional qualities and qualifications, and whether they would be a good fit for the organization. An employer may request that an employee provide a list of professional and/or personal references whom the employer has permission to contact.

When performing reference checks, especially with personal references, employers are encouraged to keep the discussion work related. While there is certainly no prohibition on asking about an employee's hobbies or interests, there is a risk that should the conversation become too casual, private, personal information could be revealed. This could have two potential consequences: (1) privacy concerns about how that personal information is handled and stored; and (2) if the personal information relates to a human right protected ground, such as age, family status, or religion, among others, it could increase the risk of a discrimination claim, especially if the candidate is ultimately not hired.

Social media checks

Employers may also check a candidate's public social media profiles, such as LinkedIn, Facebook, Instagram, Twitter, or TikTok. These profiles may provide a bit more information about what the candidate is interested in and how they conduct themselves in the public eye, which may be relevant.

Post-offer checks:

Background checks

Even after an employee has passed the interview/application process, the employer may still want to vet certain aspects of the employee's background to ensure they are suitable for the role. It is recommended that employers only perform the background checks discussed below after they have made a conditional offer of employment to the candidate. This is because these checks may reveal personal information about the candidate that falls within protected grounds under human rights legislation, such as age or country of origin. To help mitigate the risk of discrimination claims, this information should only be obtained once a conditional offer has been made.

Similarly, employers should be careful to avoid using any ancillary personal information which may be revealed during a background check in a discriminatory manner. For example, the employer should not change the terms of the job offer because they discover the employee is younger or older than they thought.

In every case, employers should secure the candidate's consent prior to performing the background checks. Typically, this will be obtained by having the employee sign an offer letter or employment agreement that outlines the checks will be performed.

Criminal record checks

An offer of employment may be conditional on an employee passing a criminal record check. We discuss this in detail in our previous blog post: The 5 W's of police record checks.

Credit checks

Some employers may also ask candidates to agree to a credit check. A credit check will disclose the employee's credit and payment history, including whether there were any past bankruptcies. Credit checks are most often required where the employee will be working in a financial role or a position where they will be dealing with money. However, employers in all industries are allowed to perform credit checks, regardless of the role, provided that the information obtained is used only for employment purposes.

Driver's licence check

If the employee will be operating a company owned vehicle, the employer may want to check their driver's licence history. This can be easily done online provided the organization has the candidate's driver's licence number(s) and their contact information. The driver's licence report will outline the status of the driver's licence including any specific licensing conditions.

Medical assessments:

Under Ontario human rights legislation, any medical assessment to verify a candidate's ability to perform the duties of the job should occur only after a conditional offer had been made. If a medical assessment is required, it should be limited to assessing whether the employee can perform the essential duties of the job and should be as least intrusive as possible.

If it is discovered the employee has a disability which impacts their ability to work, the employer's obligation to accommodate will be triggered. This means the employer will be obliged to accommodate the employee's disability unless it can demonstrate such accommodation would cause undue hardship.

Given the possible human right implications, it is recommended that medical assessments only be required in limited circumstances, such as for safety sensitive positions.

Takeaways:

Background checks can be an important means for an employer to ensure the candidate they're hiring is suitable for their organization. However, such checks can give rise to increased risks related to human right and privacy concerns if not handled with care. Employers are encouraged to consider which background checks are the most necessary and useful for their organization, and those it may be able to skip.

On the flipside, employees are always encouraged to seek legal advice when reviewing a job offer, including one that is conditional on background checks.

Lee Workplace Law would be happy to assist you with any of your employment needs.