Law Times

PAGE 10 FOCUS Employers advised to rethink background checks Non-conviction records E BY MICHAEL McKIERNAN Law Times frequently turn over much more information than the subject' criminal record, lawyers say. In a report on the disclosure mployers should rethink their background check policies in the wake of a report that found police s ployment law firm Rubin Thom- linson LLP, says too much infor- mation can be a bad thing when it comes to police interactions of non-conviction records in police background checks, the Canadian Civil Liberties Associ- ation found police forces across the country disclosed a wide range of information including withdrawn charges, acquittals, and complaints that never re- sulted in charges. Jason Beeho, a partner at em- with potential employees. "I think employers would be prudent to think very care- fully about what information they really need in relation to each position," he says. "You don't want to be in possession of other informa- tion that doesn't directly re- late to your concerns because you're putting yourself in a position where it could be more difficult to defend your- self against allegations that a decision not to hire has been based on a restricted ground of discrimination." In recent years, employ- has sympathy for the predic- ament charities find them- selves in with non-convic- tion records. For those who understand the distinction between dropped charges and convictions, it' to ignore ers have become much more likely to request background checks, according to Beeho, who says they were rare a decade ago but have now be- come "much more the rule than the exception." And once they've seen it. And some fear liability issues in the event recruits hired with their pasts known do some- thing wrong. "That' the information Requirements from some government bodies have expanded the use of background checks, says David Canton. some employers, particularly those with roots in the United States where employment, pri- vacy, and human rights laws can differ significantly, are less than discriminating about who needs to provide one, says Beeho. "It quite likely invites prob- says Canton. Abby Deshman, director of the CCLA's public safety why it shouldn't be out there," of non-conviction information contained in police checks. Ontario' program, says the risks are actually low for employers who discriminate on the basis lems if the policy is a blanket 'We need a full slate of checks for every position' no matter what its nature is." David Canton, a technology lawyer and consultant at Har- rison Pensa LLP in London, Ont., says charity and volunteer organizations have expanded their use of background checks because government bodies, such as the Ontario Arts Coun- cil, have made them a standard requirement for funding. The council demands police checks or vulnerable sector verification for all artists, staff, and volun- teers involved in programming at organizations receiving support. As a result Canton says he JENNIFERCOSTIN London Office 519-640-6370 jcostin@lerners.ca SHANNONPUDDISTER Toronto Office 416-601-2389 spuddister@lerners.ca its was "alarmed" by the amount of non-conviction disclosure identified by the CCLA report. "The reactions will be all over the place. Some will look at that information, whether it' drawn charge or a complaint, and say, 'It' s a with- We won't pay any attention to it.' But a lot will see it and say, 'May- The Lerners Employment Law Group represents employers and employees on any issues or disputes that arise in the workplace. Referrals are always respected and we work collaboratively with other lawyers as independent counsel for related entities. Put our experience to work to your advantage. Contact Shannon or Jennifer today. s just an accusation. Code prohibits discrimination on the basis of provincial of- fences or a pardoned criminal offence, which paradoxically means a convicted and par- doned criminal is in a better po- sition than someone acquitted of the same crime if both records show up in a background check. "I think there' s Human Rights apprehension, which extends to employers as well as potential employees, that when you get an acquittal or charges are with- drawn that it won't will show up in a background check," says Deshman. "For us, the presumption of s a general mis- people are making assumptions based on unproven allegations." In its report, the CCLA calls innocence means something and it' s highly problematic if on police forces to limit their dis- closures to unpardoned convic- tions, conditional discharges for a maximum of three years, and absolute discharges for one year. "Under this approach, re- cords that do not involve a find- ing of guilt by a court, such as occurrence reports and with- drawn charges, would never be included in background checks," the report concludes. s one of the reasons s still hard be I'm not sure' and decide not to take them on based on that, which isn't right." But Canton says he also governments may not want to go that far, the report also lists a number of recommendations designed to increase oversight of non-conviction disclosure: • Non-conviction However, recognizing that • Retention of non-conviction records should only occur in exceptional cases where it' should be regularly reviewed and, in the vast majority of cases, destroyed or segregated. records • The government should no- tify affected individuals of decisions to keep a non-con- viction record. People should be able to make submissions on the decision. necessary to reduce immedi- ate threats to public safety. • Disclosure shouldn't be auto- matic but should be limited to certain employment or volunteer positions. action that might result from the CCLA report, Beeho says there are steps they can take to limit their exposure to excessive dis- closure. He recommends they hire a third party to facilitate background checks. "Employers are well served • Provinces should extend human rights legislation to protect individuals from un- warranted discrimination on the basis of non-conviction records. While employers wait for any to think about exactly what they need, what is the nature of the position, and what do they consider the possible red flags," says Beeho. The third party compares the • Adequate data collection and public reporting should oc- cur as part of monitoring sys- tems to measure the use and impact of police checks. • The subject of the retained record should have a right to appeal the decision before an independent adjudicator. s November 12, 2012 • Law Times results of the check with the list of red flags and then turns over only the relevant information to the employer. "That would be properly doc- umented because you want to take advantage of deniability at a later stage, " says Beeho. LT London: 519 672 4510 Toronto: 416 867 3076 www.lerners.ca Karen Lorimer 416-649-9411 Narrow 1-8 - 3X.indd 1 ntitled-1 1 12-11-05 10:16 AM To advertise in an upcoming issue, contact our sales team: karen.lorimer@thomsonreuters.com www.lawtimesnews.com 3/5/12 2:10 PM kimberlee.pascoe@thomsonreuters.com Kimberlee Pascoe 416-649-8875

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