www.HRInsider.

ca

Understanding

HR Policies
How do you conduct compliant background checks effectively?

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3. Vetting New Hires

6. Frequently Asked Questions
9. Are You Compliant?
12. How To
15. Reference Letters
16. Useful Tools

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Background checks are time consuming, complicated and

costly.

Vetting New Hires

Options for Background Vetting Your New

Employee
You posted the job, reviewed the resumes, conducted the interviews and identified the candidate you believe is the best fit for your organization. The offer is on the table. Youve also
included the adendum, please accept our offer of employment conditional upon successfully
completing our background screening process
There are many issues involved
in the decision to conduct
a background check. When
should you do it? What are you
looking for? Who will conduct
the check? Background

checks are time consuming,

complicated and costly. They
do not always reveal anything
worth the time and money
spent. However, conducting a
background check may afford

you protection and peace of

mind.
Hiring the wrong candidate
can mean many things. More
often than not, it refers to a
bad fit, either culturally or skills

wise. Sometimes hiring the

wrong candidate has more
serious implications. The wrong
candidate might steal money,
have fraudulent qualifications.
The wrong candidate may
harm your staff, clients and
reputation. Background checks
are not perfect, they often miss
key information. The mere
fact that you are conducting
a background check may
dissuade the wrong candidate
from sticking around through
the process.
Be Careful What You Look For
The majority of employers in
Canada are not conducting
detailed background checks.
The typical background check
includes confirming past
employment and checking
references. Additionally,
some employers will confirm
educational credentials. If the
position being offered to you
deals with sensitive information,
money management or involves
working with vulnerable people,
employers may choose to run a
basic police screening.
Conducting a thorough
background check in Canada
is not an easy task. As part of
your decision-making process
you need to understand
exactly what you are looking
for, what you are able to look
for and how you will use and
store what you find. Between
Canadian privacy legislation
(privacy protection PIPEDA) and
the Human Rights Code (antidiscrimination) employers must
be careful about what they find
and how they find it. You may
conduct a background check
that discovers a person has a
criminal record and you may
then find that the criminal record

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itself is not enough to give

you grounds to stop the hiring
process.
COMPONENTS OF A
BACKGROUND CHECK IN
CANADA
8 common components of a
background check in Canada
include:
1. Identity Check (requiring
two pieces of official
identification)
2. Employment history
verification
3. References check
4. Education/Credentials
verification
5. Internet and Social Network
screening
6. Criminal Records check
(upon making a conditional
offer and you must notify
candidate)
Name search
Finger print check
Vulnerable sector report
7. Driving Record (upon
making a conditional
offer and you must notify
candidate)
8. Credit History ((upon
making a conditional
offer and you must notify
candidate)
Additional Screening Options
In addition to background
checks some organizations
will screen for a variety of other
items including:
Drug and alcohol use
Request a medical exam
P
sychometric, personality
and ethics assessments

C
ompetencies, cognitive, job
relevant and general skills
screening
Some of these may be part
of the screening process and
others upon conditional offer
being conferred. Each of these
options is subject to different
restrictions depending on the
job and your Province.
Neutral Third Party Background
Checks
When reviewing any of these
pieces of information you find in
a background check you must
be careful that the information
does not reveal protected
human rights information such
as age, race, religion, gender,
disability (health) or family
status. If you are collecting this
information you might consider
either using a neutral third party,
such as a background screening
agency or an in-house person
who checks the relevant
information but does not reveal
any non-relevant information
to the hiring authority. This
information can be filtered out of
any reports provided as part of
the decision-making process.
Before conducting any
background checks you need to:
Stop and clearly identify
what you are looking for and
why it is relevant.
Create a policy that includes
your process for conducting
a background check and
what you will do with the
information once you obtain
it.
Notify candidates of
the components of the
background check (if
conducting a criminal
records check or driving

records one way to notify a

candidate is to ask them to
provide you with the records
themselves)
Apply your process
consistently in all cases
(this means if your brother
applies for a job you need to
follow the same procedures
as you would for a stranger)
In Canada, you cant
discriminate against a candidate
because of a criminal record, bad
credit (including bankruptcy), a
disability, past medical issue, or
poor driving record. You must
be blind to these factors during
the hiring process unless you
can demonstrate legitimate
and relevant ways in which
these items make a candidate
ineligible. A previous conviction
for a DUI (driving under the
influence) may allow you to turn
away a candidate as a school
bus driver, but it may not allow
you to turn the candidate down
for a job as a mechanic fixing
school buses.

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Frequently Asked Questions

About Employee Reference Checks
Is an employer allowed to
perform a credit check on
an employee or prospective
employee?
An employer may perform a
credit check on an employee
or prospective employee if the
employer intends to use the
information for employment
purposes. Such purposes
include considering new
hires, granting promotions,
reassigning employment duties
or determining whether to retain
someone as an employee.
When should the employer
perform the credit check?
For prospective employees,
the credit check should
be completed only after a
conditional offer of employment
has been made in writing. The
main reason being that nonfinancial information about the
candidate may be discovered
through the credit check
process; if the information
concerns protected grounds of
discrimination and a decision is
made not to hire the employee,
the employer could become
exposed to liability.
For current employees, we
recommend completing a credit
check only when a decision has
otherwise been made in respect
of promoting or retaining the
employee.

Is an employer required to give

notice that a credit check will be
performed?
Before conducting a credit
check, the Consumer Reporting
Act requires an employer to give
written notice to the applicant
or employee that a credit
check will be performed. If the
applicant or employee asks, the
employer must inform him or
her of the name and address of
the consumer reporting agency
supplying the report. All such
written communication must be
in the format prescribed by the
legislation.1
Can an employer decline to
hire a prospective employee or
deny a promotion to an existing
employee based on the results
of a credit check?
Yes, but if this happens, the
employer must notify the
employee of the reason for
his or her rejection and, upon
request of the applicant or
employee made within sixty
(60) days after the notice is
given, provide him or her with
the source of the information
and the address of the
consumer reporting agency.
Can an employer perform a
credit check in regards to any
job?
In Ontario, an employer may
perform a credit check on

any employee or prospective

employee, for any job. There is
no prohibition in the Ontario
Human Rights Code (the
Code) on declining to hire a
candidate based on the results
of that persons credit history.
What are the consequences
for violating the Consumer
Reporting Act?
If any director or officer of your
business knowingly violates
the Consumer Reporting Act,
he or she may be liable for a
fine of up to $25,000 and/
or a maximum jail sentence of
one (1) year. Alternatively, your
business may be liable for a fine
of up to $100,000.
Can an employer perform drug/
alcohol tests on an employee or
prospective employee?
Drug and alcohol testing is
discriminatory unless proven
otherwise. Drug and alcohol
abuse is considered a disability
under the Code. However,
employers are permitted to
implement a discriminatory rule
if it is reasonably necessary to
achieve work-related objectives.
For a rule to be reasonably
necessary it must meet the
following three-part justification
test:
1.

The employer has

adopted the rule for a
purpose that is rationally

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connected to the
performanceof the job;
2. The employer adopted
the particular rule
in an honest and
good faith belief that
it was necessaryto
the fulfillment of that
legitimate work-related
purpose; and
3. The rule is reasonably
necessary to accomplish
that legitimate workrelated purpose.
To show that the standard is
reasonably necessary, it must
be demonstrated that it is
impossible to accommodate
individual employees with drug
and alcohol abuse problems
without imposing undue
hardship upon the employer.
When can a business perform
a drug/alcohol test on an
employee or prospective
employee?
Pre-employment drug and
alcohol testing should only
be done after a conditional
offer of employment has been
made and should be limited
to determining an individuals
ability to perform the essential
duties of the job. If testing will be
an ongoing requirement of the
job, the employer should notify
applicants of this at the time an
offer of employment is made.
The employer must be able
to demonstrate that preemployment testing provides
an effective assessment of
the applicant. Recent court
decisions indicate that this will
almost never be the case for
drug testing, and is very difficult
to justify in respect of alcohol
testing.

On-the-job testing should

be administered only when
employers can show that the
testing is reasonably necessary
to ensure job safety and
performance. Random drug
testing is likely an unjustifiable
intrusion into the rights of an
employee as it only measures
whether drugs are in the body
and not the level of impairment.
Random alcohol testing is
supported by the Ontario
Human Rights Commission, but
is only acceptable in safetysensitive positions, especially
where the supervision of staff is
minimal or non-existent.
Post-incident testing may be
justifiable where reasonable
cause exists to suspect that
drug/alcohol abuse caused
a workplace accident or
dangerous behaviour. The
Justification Test above must
always be met for any type
of drug/alcohol test to be
permissible.
Who can be subjected to a
drug/alcohol test?
Any employee may be
subjected to a drug/alcohol
test, however, drug and
alcohol testing that has no
demonstrable relationship to
job safety and performance has
been found to be a violation of
employee rights.
Can you decline to hire a
prospective employee or
terminate an employee based
on the results of the drug/
alcohol test?
There is a duty imposed on
employers to accommodate
an employees disability to
the point of undue hardship.
Workplace policies that
involve an automatic loss of

employment for positive drug or

alcohol tests are a violation of
the Code. Consequences for a
positive test must be individually
tailored to an employees
circumstances.
There are duties imposed on
both the employee seeking
accommodation and on the
employer to work together to
find the appropriate level of
accommodation.
If an employee refuses
reasonable accommodation
and is unable to perform the
necessary duties of his or her
job, then disciplinary steps can
be taken. Before termination,
the employer must provide
support to enable the employee
to undertake a rehabilitation
program (up to the point of
undue hardship).
Can an employer require
an employee or prospective
employee to undergo a medical
examination?
The employer should advise
prospective employees of
any specific and genuine
medically related requirements
of a position at an early stage
of the recruitment process.
Pre-employment medical
assessments should only be
requested after a conditional
offer of employment has been
made and should be limited
to determining an individuals
ability to perform the essential
duties of the job. In order for
a request to me made, the
Justification Test described
above must be met.
Requests for an employees
medical information can also be
made to existing employees to
determine their ability to fulfill
essential functions of his or her

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job.
Can an employer decline to
hire a prospective employee or
terminate an employee based
on the results of the medical
examination?
If an employee is unable to
perform the essential duties
of his or her job, then an
employer is not obligated to
continue his or her employment.
However, before an employee
is determined incapable, the
employer must consider options
for accommodation.
An employer is not required to
accommodate an applicants
disability if accommodation
would cause the employer
undue hardship. Both
the employee and the
employer have obligations to
communicate with one another
to form and accept reasonable
offers of accommodation.
Employee duties regarding
accommodation include, but are
not limited to:
Requesting
accommodation;
Explaining why
accommodation is required;
Answering questions or
providing information about
relevant restrictions or
limitations;
Co-operating with any
experts whose assistance is
required;
Meeting agreed-upon
performance and
job standards once
accommodation is provided;
and
Working with the
employer on an ongoing
basis to manage the

accommodation process.
Employers duties regarding
accommodation include, but
are not limited to:
Keeping all medical
information about the
employee confidential;
Paying for the costs of
medical information, tests,
and documentation;
Not being wilfully blind to an
employees accommodation
needs that may arise from a
disability;and
Accommodating an
employees needs that are
known to them.
What type of medical
information can an employer
request?
An employer is not entitled
to medical information that
discloses a disability or medical
condition. The employer is only
entitled to information regarding
restrictions on the applicants
or employees ability to perform
the essential duties of the job.
When can an employer request
a criminal background check?
Under the Code, an employer
cannot discriminate on the basis
of a criminal record. Criminal
background checks should
only be requested of individuals
where it is a reasonable and
bona fide requirement because
of the nature of the job being
applied for.
An employer who wants to
conduct a criminal background
check must meet the
requirements of the Justification
Test above. A request for a
criminal background check
should only be made after the
employer has decided to offer

a candidate the job, conditional

on a satisfactory outcome of the
background check.
Can an employer decline to
hire a prospective employee or
terminate an employee based
on the results of the criminal
background check?
A decision not to hire someone
based solely on the fact that
he or she has a criminal record
is discriminatory under the
Code. However, an employer
would not be discriminating if it
makes the decision regarding
employment based on a record
of offence that closely relates to
an important quality of the job.
For example, it may be
reasonable for an employer to
decline to hire someone for an
accounting role if the person
has been convicted of fraud.
Likewise, it may be reasonable
for a retail store operator
to decline to hire someone
who had been convicted of
shoplifting.
If a person has received a
pardon for the crime which
they committed, an employer
cannot refuse to hire that person
because of that crime.

HR Insider

Are You Compliant?

What You Should and Shouldnt Say About Former

Employees
When a fellow HR director calls
asking for a post-employment
reference about one of your
former employees, its a
dilemmaespecially when you
dont have anything positive to
say about the former employee.
Your ethical side cries out to
warn your fellow traveler from
HR that this guy is bad news
and shouldnt be hired. But
your professional side knows
that bad-mouthing a former
employee can get you into a
heap of legal trouble and that
the last thing your company
needs is to be sued for
defamation.
Damned If You Do
The legal risk of saying negative
things about a former employee
stems from defamation, i.e.,
a tort that involves saying
something untrue and harmful
about a person that harms his
or her reputation and causes
damage. Making negative
remarks about an employee
in the context of a postemployment reference can lead
to liability for defamation. And
even if the words you use are
truthful and not defamatory,
once employees learn what you
said they might blame you for
not getting the job and drag you
into a lawsuit.
Example: An investment dealer
with a stellar track record
is fired without cause. His
supervisor, who has always
treated him badly, meets with

the dealers former clients and

suggests that the dealer might
have misappropriated client
funds, even though he has no
evidence or reason to believe
this is true. To make matters
worse, the supervisor tells a
prospective employer that the
dealer is under investigation
by the government but omits
a critical piece of information:
the investigation is based on
a customer complaint that the
employer has already looked
into and determined to be
groundless. The dealer sues and
the court finds the supervisor
guilty of defamation and awards
the dealer a double notice
period, plus punitive damages
[Musgrave v. Levesque
Securities Inc.].
To avoid defamation, some
employers give every former
employee a positive reference,
even if theyre undeserved.
Thats a bad idea, especially
if you fired the employee for
theft, sexual abuse or violence.
If the employee engages in
similar conduct at her new
job, you might be liable for
the resulting injuries under a
theory of negligent or fraudulent
misrepresentation. Moreover,
the positive things you say
could come back to haunt you
if the employee uses them in
a wrongful dismissal lawsuit
as evidence that she was fired
without cause.
Another common approach is
to provide minimum, factual

information, like confirming

the dates of employment
or say nothing at all about
former employees. This is a
defensible policy if you follow
it consistently. The problem is
that theres a tendency to clam
up only when youre giving
references about bad former
employees while being perfectly
willing to talk at length and in
detail about former employees
you feel positive about. This
inconsistency doesnt resolve
the reference dilemma; it only
makes it worse.
Damned If You Dont
So the answer is simple: Just
dont give a post-employment
reference to any employee.
After all, theres no law that
requires employers to furnish
references. Or is there? In fact,
several courts have cited an
employers refusal to provide
an employee a reference as
evidence of bad faith justifying
Wallace or punitive damages.
Example: A company fires
a broker without warning or
explanation and refuses to
give him a letter of reference
even though hes always
been a trustworthy, honest
and hardworking employee.
Unable to find another job, he
sues. The Nova Scotia court
awards him almost $600,000
and blasts the employer for
failing to provide a letter of
reference, calling the failure a
callous disregard for his future

10

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[Barakett v. Levesque Beaubien

Geoffrion Inc.].

Use Written Policy to Ensure

Appropriate References

Example: A car dealer fires

a bookkeeper with 23 years
of service for incompetence
without warning and it refuses to
provide her a letter of reference
or help her find a new job. The
Ontario court hits the dealer with
Wallace damages. The employer
played hardball and must
accept the consequences of its
actions, it rules [Brien v. Niagara
Motors Ltd.].

So where does this leave

you? What options do you
have? What you should do, the
lawyers say, is give accurate
references and back them
up with the facts. Employers
have nothing to fear from the
provision of frank, honest and
objective references, says an
employment lawyer in Ontario.
But implementing such a policy
requires delicacy. You need to
establish a policy and set of
ground rules to ensure that you
and your employees do it right.

Example: By way of contrast,

the employers willingness to
provide the employee a letter of
reference is one of the factors
a Saskatchewan court cites in
dismissing an employees claim
for Wallace damages [Fox v.
Silver Sage Housing Corp.].

What Policy Should Say

Appoint one person to be in
charge of references. Give
the HR manager or another
person sole authority to create

or approve letters of reference

at your organization. Instruct
supervisors to direct the
reference letters they write to
this person. And make this
person the point of contact
for any follow-up calls with
prospective employers.
Require written requests for
references. Private investigators,
ex-spouses and other
individuals have been known to
pose as prospective employers
to get confidential information
about a former employee. One
way to ensure that persons
requesting a reference are legit
is by requiring them to put their
request in writing.
Establish guidelines on the
substance of references.
The policy should lay down

HR Insider

guidelines on what to say in a

reference letter. One option is to
establish a standard fill-in-theblanks form letter listing limited
information of a purely factual
nature like names, job titles
and dates of employment and
leave no room for qualitative or
descriptive information.
Regardless of your approach,
indicate in your policy that
information listed in the
reference letter must be truthful
and based on the facts. The
general rule: Make sure that you
can verify and prove everything
you say in the reference letter.
You might want to specifically
ban the inclusion of opinions
and subjective conclusions. Just
deliver the raw facts about the
employee and let prospective
employers draw their own
conclusions. Also limit the
information you provide to the
questions youre asked and
dont volunteer information
thats not requested.
Make employees sign consent
form. When employees leave
your organization, have them
sign a written consent form that
authorizes your company to
disclose employment reference
information. Like our Model
Consent Form, make sure the
form releases your company
from liability related to the
reference.
Ban verbal references. Some
prospective employers will just
call and ask what you know
about a former employer and
whether you would rehire them.
But experts agree that its a
bad idea to respond verbally.
You can get caught saying
something that you shouldnt
have said. Plus, you wont have
a record of the reference which
could help defend against a

11

future lawsuit.
Require consistency. You must
follow your policy and provide
the same types of information
for every former employee. If
you dont, your inconsistency
could be branded as a breach
of contract, which could lead to
additional liability. This doesnt
mean that each reference letter
must be identical. But if your
policy is to provide information
about your employees work
habits, youll need to do it across
the board.
6 Ways Employers Can Be
Liable for Employee References
1. Defamation. Employers who
give false references with
the intent to injure a former
employees reputation can
be liable for defamation,
also known as slander (for
oral statements) and libel
(for written statements).
The good news is that the
employee wont win the
lawsuit if you told the truth.
2. Misrepresentation. If you
give a glowing reference
for an employee who didnt
deserve it, the employees
future employer can sue you
for negligent or fraudulent
misrepresentation. If it
can show that it hired the
employee based on your
recommendation and it was
injured by the employees
conduct, it may win.
3. Interference with
Contractual Relations.
Employees who lose
a job based on your
recommendation can argue
that you interfered with a
prospective employment
or contractual relationship
[Kotch v. Casino St. Albert
Inc.].

4. Wrongful Termination. If
you dismiss an employee
for just cause and then turn
around and give her a great
recommendation, she may
be able to come back at
you for wrongful dismissal.
If you tell a prospective
employer that she was a
great employee, what were
your grounds for letting her
go?
5. Privacy Violation. Some
privacy laws, such as
Albertas Freedom
of Information and
Protection of Privacy Act,
prohibit employers from
sharing certain employee
information without written
consent, especially if theyre
public employees.
6. Increased Notice Period.
Refusing to provide a
reference or failing to
provide an accurate one can
put your company at risk of
increased damages for bad
faith conduct involved with a
dismissal.
CONCLUSION
The more you can learn about
prospective employees from
their previous employers,
the more likely you are to
make a sound hiring decision.
Unfortunately, the more you say
to other employers about your
own previous employees, the
greater your risks of being sued.
The result of this tension is that
the giving and receiving of postemployment references has
evolved into a liability-avoiding
dance. Following the guidance
and model forms in this article
will go a long way toward
improving your own footwork.

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HR Insider

How To

Conduct Criminal Record checks

A blanket refusal to hire
somebody because he has
a criminal record is a form
of illegal discrimination. But
employers may also have
a legitimate interest in not
wanting to hire individuals
that have committed certain
crimes for particular positions.
For example, a record of
conviction for a tax evasion
might be legitimate grounds
for disqualifying an applicant
seeking a sensitive financial
position like comptroller. The
problem, of course, is that most
people dont list their criminal
convictions on their resume
or mention them in the job
interview. To uncover these
things you generally have to
conduct a criminal record check.
But when you do a criminal
record check, you bring into play
a host of liability risks, including
under human rights, privacy and
criminal records laws. Thisarticle
will explain the legal restrictions
and how to comply with them.
What Is a Criminal Record
Check?
A criminal record check
(also known as a criminal
information request) lists
certain information about an
individuals criminal history,
such as charges and resulting
convictions, sentencing,
discharge or acquittal. There are

three levels of criminal record

check:
1. Name Search. An
applicants name and date
of birth are used to search
for criminal records in a data
bank maintained by the
Canadian Police Information
Centre (CPIC) in an
Identification Data Bank. You
can do this search through
the local police in your
province who run a search
through the CPIC. That
search will reveal any records
related to that name.
2. Fingerprint Search.
A higher level search is
done through the Civil
Fingerprinting Services
through the Royal Canadian
Mounted Police (RCMP).
You can also get a certified
criminal background check
from the RCMP, which checks
the workers fingerprints
against a database of crimes
and charges in the entire
country.
This search takes longer
but is more definitive than
a name search. If a name
search turns up convictions
linked to your applicants
name, you may still need to
confirm those convictions
with a fingerprint search. Or,
if the applicants name is very
common, you may need to

do a finger print search to

ensure the right individuals
record is searched. For
example, a fingerprint
search was recognized as
reasonable and appropriate
by a federal court when an
individuals name was fairly
common and cross-checking
records using his date of birth
wasnt sufficient [Cho v. Royal
Canadian Mounted Police].
3. Vulnerable Sector
Check. Organizations that
provide services to children,
nursing home residents, the
disabled or other vulnerable
individuals can request a
vulnerable sector check on
prospective employees or
volunteers. This check is in
addition to a criminal record
check and searches for police
contact, i.e. any negative
contact with police that didnt
result in criminal conviction
such as being arrested and
released without being
charged or being suspect in a
case, criminal convictions and
pardons relating to crimes of
a sexual nature.
Why Perform a Criminal Record
Check
There are several legitimate
reasons to request a criminal
record check on a prospective
employee:

HR Insider

Law Requires Check:

Some provinces, such as
Saskatchewan, Nova Scotia
and Ontario, require criminal
background checks of provincial
or educational workers. In
BC, the Criminal Records
Review Act requires a criminal
records check for anyone who
works with children or has
unsupervised access to children
such as:
Members of governing
bodies including teachers,
doctors, nurses, dentists,
chiropractors, optometrists
and physical and massage
therapists;
Students registered in a
post-secondary institution
who work with children;
Individuals who work
with children including
independent school
teachers, licensed child
care providers, child care
providers who dont require
a licence but are registered
with the provinces Child
Care Resource and Referral
program and volunteers in
child care facilities and after
school programs;
12-year old or older
residents at child care
facilities; and
School and hospital staff.
Insider Says: Recent changes to
that Act now require checking
for pardons, conditional
discharges, charges diverted
to alternative measures and
offences outside of Canada,
as well as rechecking covered
individuals at least once every
five years.
Relevant to Applicants Ability
to Do Job: As MBs new

13

guidance on pre-employment
screenings indicates, some
convictions or charges may be
relevant to an applicants ability
to perform the job you seek to
fill. For example, you may want
to require criminal record checks
when filling the following types
of jobs:
Positions of trust: For example,
workers who are entrusted
with large amounts of cash or
are granted access to secure
systems, data, or facilities.
Positions that involve
international travel: Youll need
to do criminal checks before
filling positions that require
international travel to countries
like the U.S. that restrict travel
by foreign persons with criminal
records.
Highly sensitive positions: Even
if not expressly required by law,
criminal checks are just about
a must for positions involving
contact with children or other
vulnerable persons.
Provide Safer Workplace:
Individuals who have been
convicted of a violent or
dangerous offence might pose
a risk to co-workers or visitors to
your site.
Example: A painting company
hired a new crew member to
paint apartments in a large
building without realizing that
he had been convicted of
multiple crimes, including theft
and assault. Sure enough, the
painter broke into the bedroom
of a woman in the apartment
building and when she began
to scream beat her with the
butt end of a rifle. Later, after
spending 12 years in jail for
attempted murder, he was hired
by a second-hand store. Again,

the employer didnt check his

background. His past would only
come to light after the employee
put a knife to the throat of a
co-worker and tried to force her
to open the company safe [R. v.
Karl Rodney Rowlee].
How to Conduct a Criminal
Record Check
Privacy laws like the federal
Personal Information Protection
and Electronic Documents
Act (PIPEDA) and their
provincial equivalents ban
companies from accessing the
criminal records of existing or
prospective employees without
consent. So if you want to
find out about an individuals
criminal history, you must notify
the person and get her consent
to the record check. A simple
way to provide notification
and get consent is to tell the
person to go to a local police
station and fill out a criminal
information request form listing
the following information:
Full name;
P
revious names (e.g.,
maiden name);
Current address;
P
rior addresses within the
past five years;
Date and place of birth;
Gender;
N
ame of employer requiring
the background check; and
C
onsent for background
check and release of
information to employer.
The police station will run the
individuals name through
Canadas national database
and its local files and send
back a report that lists each
offence for which she was

14

convicted. The review process

can take anywhere from a few
days to a few weeks, and most
police stations will forward
the information directly to
you, as long as the individual
consents when requesting the
information.
When a fingerprint check is
required, the individual must
request a certified criminal
record check from the RCMP.
As noted above, this check is
much more accurate because
it doesnt rely on names given
by the applicant but it can take
much longer to get the results
back.
Record check required under
the Criminal Records Review Act
in BC must be ordered through
the provinces Governments
Criminal Record Review
Program. The employer still
has to get the employee or
applicants check even if the
check is mandatory under the
Act. Individuals who dispute the
findings of the check may have
to submit to a fingerprint search
to allow for further checking.
The federal Criminal Records
Act sets forth a form for the
employees consent to a
search performed with regard
to employment involving
vulnerable persons or children.
That consent must include
an acknowledgement by the
individual that he is authorizing
a search of criminal records
for any conviction, even one
pardoned, of any sexual offense
listed in the Act.
Insider Says: Workers arent
required to tell you about
offences for which theyve
been pardoned. Nevertheless,
the federal Criminal Records
Act allows employers to

HR Insider

obtain information about these

offences if the worker will have
access to vulnerable persons,
such as children.
Create Policy to Avoid
Discrimination Risks
As noted above, in most of
Canada, its against the law to
fire, refuse to hire or otherwise
unfavourably treat a person
just because he has a criminal
background. But criminal
record checks can also lead to
discrimination against others if
you use race, religion, and other
grounds protected in the law as
a criterion for determining who
to check. Thus, for example,
it would be illegal to require
applicants to submit to a check
just because theyre Muslim. Of
course, that doesnt mean that
Muslims and others protected
by the discrimination law are
exempt from checks. As long as
your checking policy is based
on legitimate criteria associated
with the position rather than the
personal characteristics of the
individuals seeking or holding it,
youll be okay.
Bottom Line: Adopt a policy
on criminal record checks that,
among other things, explains
what positions require checks.
You can adapt the Model Policy
on page x. Like our Model Policy,
your policy should also:
Require a clear criminal
record check for specific
positions upon the start of
employment;
Allow for a conditional
term of employment before
receipt of the results of a
criminal record check; and
Include a statement that
unsatisfactory criminal
record check results could

result in demotion or
termination.
CONCLUSION
In addition to being timeconsuming, criminal record
checks require a lot of fancy
legal footwork. Thats why, at
least for most employers, the
criminal record check is not an
integral part of the screening
and hiring process. But there
are times when checking an
individuals background for
crimes becomes not only
relevant to the applicants
qualifications for the position
but perhaps even required
by law. As an HR director, the
best way you can protect your
company is to:
Identify which positions
require criminal record
checking;
Ensure that the company
adopts and implements
a policy to ensure checks
are carried out consistently
on the basis of positions
rather than characteristics
of applicants seeking or
holding them; and
Make sure that procedures
are in place for notifying
applicants of checks and
securing their consent to
checks.
Theres one more significant
challenge: ensuring that you
make proper use of the results
of criminal record checks once
you receive them. The Insider
will show you how to do that
next month.
SHOW YOUR LAWYER

Cho v. Royal Canadian Mounted

Police, 2007 FC 1032 (CanLII),
Oct. 5, 2007

HR Insider

15

Reference Letters

What are an Employers Obligations?

As an employment lawyer I am
often asked, by both employers
and employees, whether an
employer is legally obligated
to provide a dismissed or
resigning employee a letter of
reference. The short, simple
answer is that in British
Columbia, our courts have
confirmed that an employer
is not required to provide a
reference letter. However,
the answer is not always that
simple. The following are a
few considerations when it
comes to assessing whether an
employee should be provided
with a letter of reference.
An employer that has a
company policy of providing
reference letters or has
established a general practice
of providing reference letters
to departing employees, may
inadvertently commit itself to

providing a reference letter to

employees who leave. If these
are the circumstances of an
employer, then the decision
not to provide a reference
letter to a particular employee
may raise red flags and
increase the chances that an
employer will be required to pay
compensation to an employee
for bad faith conduct during the
dismissal process (assuming a
lawsuit has been commenced
by an employee for wrongful
dismissal, etc.).
If an employer decides not to
provide a reference letter, they
should be prepared to provide
a reasonable explanation to
the employee (and potentially
a court) to justify its decision.
Otherwise, the employer may
be seen to be acting in bad faith,
thus increasing exposure to
liability to an employee.

Furthermore, an employer
should be careful if attempting
to make the availability of a
severance letter conditional
on the employee accepting a
particular offer of severance.
Even though a reference letter
is not technically an obligation
of the employer, making a
reference letter available as a
tool to coax an employee into
accepting a particular severance
offer may be be looked upon
unfavourably by a court.
Providing a reference letter to
an employee can increase the
likelihood that the employment
relationship will end on a
positive note. This in turn
may decrease the possibility
of a dispute arising between
the parties down the road,
something that neither party
ultimately wants to happen.

16

HR Insider

Useful Tools
Tips and Templates
TIPS FOR CONDUCTING
REFERENCE CALLS
1. Try to avoid making more
than 2 -3 reference calls in
a row or within a given time
period without a break.
2. Try to avoid making
reference calls when you
are tired, hungry or in a bad
frame of mind (your mood
can impact how you receive
the information and your
tone of voice can impact the
way others respond to you).
3. Although you are listening
for verbal cues be careful
how much you read into
them. Stick to the facts as
much as possible.
4. Maintain detailed notes and
clean your notes up before
filing them. Avoid collecting,
noting and considering
prohibited information
(about age, gender, religion,
disability/health, family
status) during the screening
process
5. Follow a consistent process
for all references and all
candidates
6. Consider the candidates
privacy and do not
reveal information about
the candidates status
or performance in the
interview.
7. Not all references are
comfortable being
references. As much as
possible put them at ease

by saying the reference

is only one piece of
information you will be
considering. Offer reference
questions that are fairly
open ended and give them
room to talk. However,
include questions that allow
them to summarize and
compare for somewhat
objective measures.
SAMPLE PHONE CALL SCRIPT
Hello Mr./Ms. Name
My name is ___________,
I am the human resources
assistance at ABC company in
Victoria, B.C. I am conducting
a reference check on Name of
candidate. Name of candidate
has listed you as a reference
(or previous employer). Are you
available to speak to me right
now for 10-15 minutes?
(Reference indicates available to
speak)
Thank you for agreeing to speak
to me. We are considering
Candidates name for a position
as job title. Our organization
is (include one sentence to
describe your organization).
This position involves (brief
description of the position). I
have a list of x questions (6-8)
and I will be recording your
responses as we speak. If you
have any questions along the
way please just stop and ask.
(Reference indicates no
availability)
I understand you are busy

right now. We are considering

candidates name for a position
as job title. Our organization
is (include one sentence to
describe your organization). Can
we schedule a time to talk later
today or tomorrow?
Close the call by thanking the
reference for his/her time.
SAMPLE EMAIL SCRIPT
REQUESTING A PHONE
CONVERSATION
Subject: Reference for
Candidates Name
Hello Mr./Ms Jones,
My name is ___________ and
I am the human resources
assistance at ABC company.
An employee of your company
(or a previous employee),
Candidates name, has listed
you a reference able to confirm
his employment with your
organization. Candidates
name is being considered for
the role of name of role. Are
you available to schedule a
brief phone call to confirm the
details of Candidates name
employment and answer a few
questions? I estimate that this
call will require only 15 minutes
of your time.
If you are willing to provide
this reference I would like to
complete this process within
the next two days. Please let
me know if you are available
between 9:00 am and 11:00am
(pst) on date or date. If you are
not available at these times
please let me know if there is an

HR Insider

alternative time that will better fit

your schedule.
Thank you for your
consideration. I look forward to
speaking with you.
Best Regards,
Name,
(email signature including
position title, organization and
contact information)
SAMPLE EMAIL SCRIPT
REQUESTING A WRITTEN
RESPONSE TO A REFERENCE
FORM
Subject: Reference for
Candidates Name
Hello Mr./Ms Jones,

17

My name is ___________ and

I am the human resources
assistance at ABC company. An
employee of your organization
(or a previous employee),
Candidates name, has listed
you a reference able to confirm
his employment with your
organization. Candidates name
is being considered for the role
of name of role

I will be following up with this

survey in the next 2 business
days. If you are unavailable
please let me know and I will not
send the survey.

Would you be able to complete

a brief reference survey we
have created to help us better
understand what type of
employee Candidates name
was? I estimate that the survey
will require approximately 15-20
minutes of your time.

Name,

Thank you for your

consideration. If you have any
questions please do not hesitate
to contact me.
Best Regards,
(email signature including
position title, organization and
contact information)

Contact us
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penticton, BC
Phone +1 800 220 9547
Email info@hrinsider.ca
Web www.hrinsider.ca