THE EMPLOYERS' EDGE
Proceed with Caution when Asking for a Criminal Record Check from Employees
Note: The plaintiff, in the lower court decision reported below, appealed to the Ontario Court of Appeal. In the decision released on March 21, 2017 the ONCA determined that the termination clause in the plaintiff’s contract was unenforceable as it breached the Employment Standards Act. The plaintiff was awarded $56,000 representing her salary for the 40 weeks that remained on her fixed term contract at the time of termination. The ONCA decision did not address or comment on the issue of the request for a criminal background check.
Many employers require their employees to complete and provide criminal record checks. Unfortunately, too few employers give thought to the procedure they will use to obtain this information from employees. Despite the employer successfully demanding a criminal record check, the case of Covenoho v Pendylum Inc highlights some of the common pitfalls employers make in this process.
In Covenoho the plaintiff was hired under a fixed term contract for one year. The defendant terminated the plaintiff’s employment before three months had expired as the plaintiff refused to provide a criminal record check to the employer. The criminal record check was requested after the Plaintiff had started work.
The employer requested the criminal record check because one of the clients to whom the employer provided services imposed a requirement that anyone working on its project provide a criminal record check. As a result, the plaintiff’s employer instructed all employees to consent to a criminal record check and provide the results. The plaintiff refused to consent and her employment terminated.
The plaintiff sued for wrongful dismissal and claimed the balance of the term of the one year contract as damages. Part of the argument put forward was that the employer terminated the plaintiff’s employment in bad faith by requiring a criminal record check which was not required by or contemplated in the employment agreement.
The Court rejected this argument as the Employer had communicated to all employees the reasoning for the new criminal background check requirement and informed all employees that a failure to consent would result in termination of employment.
Employers should be encouraged by this decision as the Court recognized that the changing circumstances of a client may create a requirement for a criminal record check during the course of employment. Going forward, if an employer can point to a legitimate requirement for the criminal record check that has arisen during employment, it is likely that the employer will be able to establish and enforce the requirement. If the request is made during employment, the employer should communicate that it is required and that failure to consent will result in termination to each employee. However, we would encourage employers to not rely on the ability to request a criminal record check once employment begins.
As a best practice, employers should include the requirement of a completed background check with a satisfactory result as a pre-employment condition. Ideally this requirement would be included in the employment contract. It is also recommended to not allow an employee to begin work until they complete and return a satisfactory criminal record check, or to place limitations on the type of work the employee can do prior to returning the record check where appropriate.
Further, when making a request for a criminal background check employers should consider how much information they need to determine if the employee is suitable for the position. We have previously blogged on the different types of background checks and their appropriateness – click here for more information about background checks generally.
Additionally, even if a request for a criminal record check is permitted, once an employer is in receipt of a criminal record check, they must consider the Ontario Human Rights Code and determine if it is permissible to refuse to hire the – or terminate the employment of an existing - employee. The Code only allows employers to discriminate on the basis of a conviction for a federal offence for which no pardon has been granted. If a conviction does appear on a prospective employee’s or current employee’s record the employer must assess the conviction in the context of the job rather than simply immediately disqualifying the individual from consideration.
Employers should take proactive steps to assess the need for a criminal record check and give consideration to when it will be requested, how it will be enforced and what information will be required. Employers should also develop a process for dealing with a criminal record check that includes a conviction to ensure they do not run afoul of the Human Rights Code. The lawyers at CCPartners can help you navigate this particularly difficult topic, whether at the recruitment/hiring stage or in dealing with existing employees.