THE EMPLOYERS' EDGE
Asking for the Check: New Rules as of November 1, 2018
In March 2016 CCP brought to your attention the Police Record Checks Reform Act. This Act was new legislation designed to standardize the process by which police record checks are requested, conducted and obtained in Ontario. The Act received Royal Assent in December 2015 but only came into force on November 1, 2018. If you did not use the almost three year delay to prepare and ensure compliance, now is the time to review your current practices and policies.
Prior to November 1 of this year, each police service had its own criteria and manner of handling the various types of police record check requests. This occasionally led to challenges for employers as different employees faced varying requirements and conditions to obtain a police record check. This was the case, as even though an employer may only have one location, police checks are typically obtained from the police service that has jurisdiction over where the individual lives. As a result, employers with a geographically diverse workforce often worked with varying processes.
Relevant to employers, the Act applies to almost everyone who requires a police record search to be conducted for the purposes of determining suitability for employment or volunteer work. As a result, if you are involved in facilitating obtaining police record checks you should familiarize yourself with the Act.
Although our initial overview, available here, provides details of the Act, to recap the key takeaways are:
- Three types of record checks will be available – details are available from the Ministry of Community Safety and Correctional Services here;
- Disclosure of any charge where the individual is found not criminally responsible on account of mental disorder and non-conviction is prohibited;
- Organizations that receive information from police record checks must not use or disclose the information except for the purpose it was collected; and
- The individual who is the subject of the “check” has the final say as to whether the information will be disclosed to a potential employer.
Some employers may be exempt from the new requirements. Unfortunately, these regulations are not entirely straightforward. Generally, under Regulation 347/18 schools and child care providers are exemption from section 9 of the Act, which addresses disclosure of information, if specific purposes related to screening the individual for suitability to work with children are met. Accordingly, we recommend that employers who are concerned about the legal compliance of their police record check policy review the Act and Regulations and seek legal advice as necessary.
Although the standardization of the process may assist employers in administering and obtaining police record checks, it is critical that employers remain aware of the potential risks and areas of liability in seeking the information they receive. The lawyers at CCPartners can help you navigate not only compliance with the Act but also managing and using the information that you receive at all stages of the employment relationship.
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