Keeping Criminal Background Checks in Check: Privacy Law Limits on Employee Criminal Background Checks in B.C.

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In February 2018, Dr. Joseph Copeland, an ER physician who treats children and vulnerable adults at two BC hospitals, attended a Vancouver police station to complete his statutorily-required criminal record check, which is legally required once every five years for persons working with children and vulnerable adults. Dr. Copeland found that the procedure had changed. He was told that he had to have his fingerprints taken to prove that he wasn’t a sex offender with a similar identity. He was told that if he refused to provide his fingerprints, he could face professional sanctions that could affect his license to practice medicine. Because he works with at-risk populations and required the record check, he provided his fingerprints, but did so under protest. Dr. Copeland felt he was treated like a criminal, which illustrates the tension between public safety and individual privacy in the context of employment-related criminal record checks.

BC’s private sector privacy legislation, the Personal Information Protection Act, (“BC PIPA”) allows employers to ask applicants to provide personal information when they apply for jobs, including qualifications, experience, knowledge, skills and abilities, if that information is “reasonably required” for their hiring decisions and this information cannot be established through less intrusive means. Where the information collected, used or disclosed fits the definition of “employee personal information” for establishing, managing or terminating an employment relationship between the organization and that individual, BC PIPA relaxes the employee consent requirement.

Often, employers request that job applicants complete criminal record checks. The amount of information contained in such checks depends on the type of record check. These are:

  1. Statutorily-required record checks. Under BC’s Criminal Records Review Act, individuals who work with or may have potential for unsupervised access to children or vulnerable adults and who are employed/engaged by an organization that is provincially funded (50%+), licensed or contracted by the provincial government or a government agency must undergo checks coordinated by the Criminal Records Review Program (“CRRP”). These checks start with a review of convictions and outstanding charges related to particular offences and can include further information where appropriate; and
  2. Police information checks. Police agencies across BC have adopted consistent Guidelines for Police Information Checks. These checks include information about prior convictions, outstanding charges and non-conviction information such as adverse police contact and investigations that did not result in charges.

For individuals working in certain sectors, including childcare facilities, adult care facilities, teachers, post-secondary students working with children and/or vulnerable adults as part of a practicum and members of certain governing bodies and regulated professions, establishing that a criminal record check is “reasonably required” is easy to do since these individuals are legally required to undergo criminal record checks conducted by the CRRP.

In other sectors, record checks may be unnecessary and highly privacy-invasive. As former BC Privacy Commissioner Elizabeth Denham points out in her 2014 report on the Use of Police Information Checks in British Columbia (the “Denham Report”), little research has been conducted on the usefulness of record checks. Additionally, record checks can reveal sensitive personal information about a person’s past activities, including mental health information such as apprehensions and suicide attempts, prior convictions, penalties and outstanding charges, and details about adverse contact with police, including investigations that do not result in charges and charges that do not result in convictions.[1] This information may be untested and unproven.

Record checks are optional for most volunteers, but are often required by certain not-for-profit organizations that regularly deal with at-risk populations. Such organizations[2] can submit an Application for Registration to the CRRP to receive free record checks of volunteers who work with vulnerable groups.[3]

Employers must be mindful of their obligations under the Human Rights Code and ensure that this record check information is only considered if related to the employment. Employers are encouraged to think carefully about using criminal record checks considering they will not identify risk relating to offenders who have never been caught or future offenders who have not yet committed their first offence. Moreover, a past conviction or record may be a poor predictor of future offences or risk. Finally, there is a risk that the record may result in the employer making a decision that could attract human rights claims and/or liability. Employer resources may be better spent on non-criminal background checks and more comprehensive interviewing measures. Ultimately, the stigma associated with job applicants having to reveal information in overly broad background checks can be significant, unnecessary, prejudicial and hard to “un-see” or disabuse, so careful thought should be given to whether a position really requires a criminal record check, and caution should be taken before making it a requirement.[4]

If an employer deems a criminal record check necessary or warranted, it is advisable to take steps to ensure that the information is channeled through a person who is charged with assessing the relevance of the information in the record to the job-requirements, only passing on the information that is probative and job-related, and then only to a limited number of people on a strictly need-to-know basis. Employers should also be very careful that its process for storing, accessing and disposing of such records meets the requirements of BC PIPA.

Criminal record checks are just one type of background check. Other background checks can include checks on identity, educational and professional qualifications, employment history, credit history, lawful entitlement to work in Canada and social media presence (“Background Checks”). Employers must ensure that (i) any Background Checks they undertake are reasonable and defensible within applicable privacy principles, (ii) the applicant in question has consented to the specific checks that are being performed and (iii) the Background Checks do not risk potential human rights discrimination claims (e.g. checking credit history for a job that does not reasonably require it). Also, in the context of commercial transactions, purchasers often require vendors to run Background Checks on their employees and contractors. Employers are advised to take similar precautions in relation to any such Background Checks to ensure compliance with applicable privacy and human rights obligations.

If you have any questions regarding this post, please reach out to any member of our Labour & Employment or Cybersecurity, Privacy & Data Management team.

[1] For instance, in 2013, the Vancouver Police Department completed 18,250 checks and released information on 797 (4%) of these checks. Interestingly, only 224 of the 797 checks (28%) involved criminal convictions. That is to say 72% involved the release of non-conviction records only. See Denham Report at 18.

[2] See definition of “specified organization” at Criminal Records Review Act, R.S.B.C. 1996, c. 86, s. 1.

[3]https://www2.gov.bc.ca/gov/content/safety/crime-prevention/criminal-record-check/volunteer-organizations.

[4] The process for challenging information contained in either a police information check or a statutorily-required record check can be difficult to navigate and is rarely used: https://www2.gov.bc.ca/gov/content/safety/crime-prevention/criminal-record-check/results-and-reconsiderations; Denham Report at 17.

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