Many employers perform background checks before hiring their employees. The process could be as simple as checking an applicant’s professional credentials, education, and references, or as detailed as a criminal records check (sometimes called a “criminal reference check”) or vulnerable sector screening.

There are many reasons why performing a background check may be appropriate, such as:

  1. to ensure that applicants are suitable for the positions for which they have applied;
  2. to ensure that applicants have honestly represented their qualifications, as finding out that an employee lied about his or her professional credentials or education can mean avoiding hiring a dishonest employee;
  3. to protect against negligent hiring allegations for failing to verify that employees are suitable for employment; and
  4. to ensure compliance with legal requirements, since for some positions, particularly those involving working with vulnerable populations (such as the elderly or children), employers are legally required to conduct certain background checks.

Here are a few general suggestions and best practices for conducting background checks that may help employers protect themselves against potential complaints, particularly those alleging discrimination for failure to hire:

  1. Background checks should only be performed once a conditional offer of employment has been made. This lessens the risk that the hiring process may be “tainted” by information revealed during the background check process.
  2. Employers may consider it beneficial to engage a third party who is not involved in the interview process to conduct background checks. The third party would preferably be a qualified, independent organization. If an employer cannot or does not want to use an independent organization, a representative of the company who is not involved in the hiring process may be used.
  3. Employers may want to obtain consent, in writing, before performing any background check. Consent is required for certain kinds of background checks, such as credit history, driving abstract, and criminal reference checks, but employers may want to obtain consent for all background checks.
  4. A background check should be tailored to the requirements of the position; for example, a vulnerable sector screening (a particularly detailed form of police background checking) is legally required for some jobs, such as caring for children and the elderly, but might not be appropriate for other jobs.
  5. Wherever possible, avoid asking questions in job application forms or interviews that are likely to reveal information relating to protected grounds of discrimination (such as age, race, creed, family or marital status, etc.).
    1. For example, when asking for an applicant’s educational history, it is always better to ask only whether the applicant completed a certain level of education (e.g., has he or she obtained his or her high school diploma), rather than asking the applicant for the name of his or her educational institution (which might reveal his or her religious affiliation) or the year of graduation (which might reveal his or her age).
    2. The independent party conducting the background check may confirm the names of educational institutions and dates of graduation at a later date.

Ontario does not have privacy legislation that applies to provincially-regulated employment relationships. However, in some other provinces and in the federal sector, employers must also ensure that their background checking efforts comply with privacy laws.


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