You have found the perfect employee. Your intuition tells you the candidate is exactly what you have been looking for. But will she really be the perfect employee? Reference and background checks are a good way to ensure that you have the right person for the job, but they are not always straightforward. Here are some tips to keep in mind if you do decide to do a reference or background check:
- Ensure that you are not violating human rights legislation — When conducting background checks for education, previous employment and criminal records, you must comply with the human rights legislation in the applicable province. Employers are restricted from basing hiring decisions on prohibited grounds such as race, creed, ethnic origin and criminal record. Information related to these grounds may be exposed in a background check.
- Beware of differences between the provinces — It is important to consider the province where the candidate will be employed. For example, in Ontario, an employer can refuse employment to an individual convicted of a Criminal Code offence for which a pardon has not been granted, regardless of the prospective job and/or the type of offence. In other provinces such as British Columbia and Québec, for example, an employer can only refuse employment to an individual convicted of a Criminal Code offence for which a pardon has not been granted if the offence for which the individual was convicted is related to the intended employment.
- Consider the timing of the background check — Because there is always a risk of learning information about a prohibited discriminatory ground in a background check, consider performing the background check only after a conditional offer of employment has been made to the candidate.
- Ensure that you meet all required notice and consent requirements — Other than requirements to obtain consent to collect, use and disclose a candidate’s personal information in compliance with applicable privacy laws, no general notification requirements cover background checks. However, in the event that the background check will include obtaining a consumer or credit report, consumer reporting legislation may impose specific notification obligations on employers. For example, in Ontario, notice of a credit check must be “clearly set forth in bold type or underlined and in letters not less than ten point in size.”
- Understand the activities of your background check provider — Because of the agency relationship between a prospective employer and a background check provider with which it has contracted, a prospective employer may be liable for any unlawful acts committed by a background checker, including with respect to unlawful discrimination and breaches of privacy. Ensure that your background checker is aware of its legal obligations and has measures in place to minimize liability.
- Always follow through — If you make an offer of employment conditional on a positive reference or background check, do not allow the employee to start work until the results of all reference and background checks have been received and reviewed. In the event that you cannot wait for all of the results of all of the reference and background checks, consider inserting a clause into any offer of employment or employment contract that gives you the ability to terminate the employee’s employment for cause in the event that the results of the background check are not satisfactory.