Pre-employment checks are an important step in a business' recruitment process. They allow a potential employer, as a precautionary measure, to validate the information contained in the applicant's curriculum vitae and to verify his or her prior infractions and credit file. While an employer may legitimately conduct such checks, this process is not, however, without limits and risks.
In Quebec, employers in the private sector are subject to the Act respecting the protection of personal information in the private sector (hereinafter the Act), which sets rules specific to the protection of information that is collected, used and communicated in the course of operating a business. As defined in the Act, "personal information" is any information that relates to a natural person and allows that person to be identified.
The Act allows employers to establish a file on an employee, but they can only collect information that is necessary for the purpose of the file. In addition, the collection, use and communication of the personal information contained in the file to third persons are only allowed with the employee's consent, which must be manifest, free, enlightened and given for specific purposes.
Therefore, in the course of a recruitment process, the prospective employer has a duty to inform the applicant about the specific goal of the pre-employment checks, about the use of the collected information and must obtain the applicant's consent before going ahead with the inquiries.
Similarly, an employer that provides references about a former employee must be prudent and ensure the confidentiality of the personal information it holds. First of all, personal information can only be communicated with the express (written) consent of the person concerned. In addition, this consent does not authorize the former employer to disclose all information about the applicant, but only information directly related to his or her work performance. The disclosure of information that relates to his or her private life, such as with respect to his or her sexual orientation, age, ethnic background or marital status, is prohibited.
Not only must employers ensure that the pre-employment checks are conducted in compliance with the Act, they must also be prudent with regard to the decisions to be made based on the results of these checks. In fact, the Superior Court recently ordered a company to pay an amount of almost $500,000 to an employee following his unjust dismissal1. The employee was dismissed on the basis that an anonymous source had provided the employer with information suggesting that the employee had been involved in the misappropriation of his former employer's funds. This decision is reminiscent of another ruling by the Superior Court that ordered an airline company and one of its vice-presidents to pay more than $171,000 to a former employee because of defamatory references that caused him to lose his job with a competing airline company2.
In addition to the risks of civil proceedings, note that penal sanctions under the Act (fines from $1,000 to $10,000) against the business may directly stem from the illegal communication of personal information to a third person. Similar sanctions may also be directly imposed on the business' representative that ordered, authorized or consented to the act constituting the offence.
Points to remember
For the employer who is recruiting:
- Obtain express and written consent from the applicant before conducting pre-employment checks, for instance, by means of the hiring form or a consent form.
- Ensure that the form spells out the purpose and the scope of the applicant's consent.
- On the form, specifically list the information that is sought, which the former employer could complete in writing. If the information is collected over the telephone, use the form to write down the responses that are provided.
- Limit the checks to what is necessary, given the nature of the position being applied for.
- Make a conditional offer of employment subject to termination if the results of the reference checks are unsatisfactory.
For the employer who is providing references:
- Obtain express and written consent from the person concerned before providing information about a former employee.
- Restrict the communication of information to what is permitted by the consent.
- Ideally, provide requested information in writing. Otherwise, keep written notes in the file of the person concerned about information that is communicated verbally.
- Limit the communication of information to what is factual, objective and work-related.
- Adopt an information disclosure policy to standardize the communication of information for reference purposes.
It is important to stress that, in addition to reference checks, an inquiry into an applicant's prior infractions and/or credit may be appropriate depending on the nature of the position to be filled. However, the legality of checks of this type is subject to other rules that are not dealt with in this bulletin.
Pre-employment checks involve risks, and the employer's rights in this respect are sometimes uncertain given the evolving nature of legislation pertaining to the protection of privacy.