Mid-Employment Checks in Canada Legal but Complicated

By Catherine Skrzypinski August 5, 2013

In the aftermath of a recent decision by a Canadian government institution to perform mid-employment background checks, HR professionals in Canada are saying that while the practice is legal, companies conducting such checks should proceed with caution.

[Canadian] employers do it, and it is not illegal,” said an HR business advisor based in Toronto. “However, it opens the door for discrimination. Depending on the purpose and how it is applied, it might discriminate on long- term employees with good performance, sometimes with minor records that have no effect on their work.”

Canada Post Corp., the country’s primary postal operator, announced in March 2013 that it would implement anew screening practice for its 71,000 part-time and full-time employees. This policy would allow Canada Post to perform background checks on current employees every 10 years. It also gives the organization authority to change the frequency of employee screenings at any point.

“To help protect the mail, Canada Post follows the federal government’s policy on government security,” Anick Losier, Canada Post’s director of media relations, wrote in an e-mail to SHRM Online. “This means that we conduct background checks on all employment candidates, as well as contractors who have access to the mail and corporate networks.”

The Canadian Union of Postal Workers (CUPW), a staunch opponent of Canada Post’s policy, has outlined the screening process for union members on its website:

  • Canada Post employees will be required to sign a consent form, giving the company permission to security-screen them.
  • If the security screen reveals a criminal record, then the employee must be fingerprinted and interviewed to explain details about the conviction.

“CUPW opposes this policy of mid-employment checks primarily because it’s a breach of our members’ privacy and also because Canada Post has not beenclear and specific about the scope, requirements, process or intent of the checks,” Gayle Bossenberry, CUPW’s first national vice president, responded in an e-mail statement.

Pardon Services Canada stated that employee background checks can affect promotions and pay and can even lead to terminations of employees who otherwise have a stellar work history. The company advised Canada Post staff who may be affected by this decision to obtain a record suspension. Formerly known as a pardon, a record suspension allows Canadians to work without a criminal record limiting their opportunities.

Current Canadian Employees Can Be Investigated

According to the Canadian Human Rights Commission, HR professionals may investigate a current employee. If an employee has not signed a consent form previously, then it is not a violation of the Canadian human rights code to ask the employee to sign one at any time during employment.

“Background screening is conducted in Canada for many positions. … The types of screens must be reasonable and appropriate to the position,” said Rhonda Fairweather, general manager of First Advantage Canada Inc., a background screening firm covering all Canadian provinces. “For most background screens [in Canada], the individual must give consent.”

Fairweather explained that common background check elements include reference checks, employment verification, education verification when the position requires a particular level of education, and criminal record checks when an individual’s position may be impacted by a criminal history.

Fairweather added that the impact of the mid-employment background check on current Canada Post employees depends on how the postal service implements a review program with its employees and how it plans to take action on the results.

“Many Canada Post employees have nothing to worry about—especially if they have good performance reviews and have followed the company’s mission statement,” said Bill Howatt, Ph.D., CEO of Nova Scotia-based Howatt HR Consulting Inc.

HR as a Strategic Advisor

Howatt insisted that even though mid-employment checks are legal in Canada, the process is highly unusual. He said he wonders what the true motivation is for senior management at Canada Post to implement midyear screening for particular behavior at this juncture.

Howatt posed several questions regarding the implications of Canada Post’s introduction of this policy:

  • Why now? Is the operational integrity of the organization in question?
  • What is the root cause? Are any other government affiliations doing this?
  • Will these criteria also apply to Canada Post’s new hires?
  • Will this create a rift between management and employees?
  • How will this policy impact Canada Post’s company culture and employee morale?

“HR has an opportunity here to facilitate the direction of a company,” Howatt added. “If they ask and answer strategic questions, then they will protect the integrity of their workforce.”

Fairweather noted that mid-employment screens are occurring south of the border. U.S. companies for several years have implemented infinity screening—post-hire screening that monitors enrolled employees on an ongoing basis and alerts HR professionals to new criminal record information as well as changes to existing records.

“Well-run infinity screening programs provide the appropriate notice to the employees and allow them to review any potential issues with human resources,” Fairweather said. “As with any background check, the action taken on any results needs to be job-related.”

Above all, the employer does have the right to investigate its staff, Howatt concluded. “It’s important that [Canada Post] pursues this correctly, as the integrity of the mail system is at risk.”

Catherine Skrzypinski is a freelance writer in Toronto, Canada.

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