British Columbia Privacy Commissioner Recommends Limits on Police Information Checks
In an investigation report released this month, the British Columbia Information and Privacy Commissioner made recommendations which will limit information disclosed by police departments in employment-related police information checks.
Until recently, police departments in British Columbia have included information about prior criminal convictions, outstanding charges, contact with the police during an investigation (e.g., as a suspect or witness), and apprehensions under the Mental Health Act in employment-related police information checks. These checks are done with the consent of the employee, for employers and employees who are not covered by the Criminal Records Review Act (“CRRA”) (previously discussed here).
The Commissioner found that, although these checks can be a valuable screening tool, the scope of information provided to employers – particularly mental health information and non-conviction information which has not been tested in court – was more than was necessary, and not in compliance with privacy legislation.
The Commissioner made the following key recommendations:
1. Police departments should stop releasing mental health information in employment-related background checks.
2. Police departments should stop releasing non-conviction information for positions where the employee is not working with children or vulnerable adults.
3. Police departments should require employers to limit their requests for information about convictions to specific risk categories which are relevant to the person’s employment, such as Drugs and Alcohol, Sex, Violence and Theft and Fraud.
4. Government should require that the centralized office currently responsible for processing criminal records checks under the CRRA undertake all record checks for vulnerable sector employees, not only for employers who receive provincial funding.
What this means for employers
The Commissioner’s recommendations will undoubtedly result in significant changes to the information available to British Columbia employers about prospective employees. We of course recommend that all employers take a cautious approach to pre-employment background checks and collect only the type and amount of information reasonably required to start and manage the employment relationship. In addition, in the absence of broader police information checks, we recommend that employers who require pre-employment background checks take the following steps:
- Carefully consider what information is necessary to assess the suitability of an employee and ensure a safe and secure workplace. The type of information will vary depending on your business and the employee’s work, including his/her responsibilities, the extent to which he/she works unsupervised or alone, and the identity of those with whom the employee comes in contact.
- Conduct background checks only at the final stage of hiring, when making a conditional offer of employment. If necessary, provide the candidate with an opportunity to provide more details about a background check, to ensure the information you have collected is accurate before making a decision.
- Ensure that background check information is kept in a safe and secure location and only shared with those who truly need to know.
- Conduct comprehensive reference checks, and consider extended probationary periods, performance management, supervision and other measures to ensure a safe, secure and productive workplace.
We will keep you up to date on any legislative and policy changes which arise out of the report. The full investigation report, F14-01, is available at www.oipc.bc.ca/report/investigation-reports.aspx.
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