In what she calls “one of the most important investigation reports, if not the most important” she has issued, Elizabeth Denham looked at the increasing use of employment-related record checks that can disclose sensitive personal information including mental health illnesses, suicide attempts, and allegations that did not result in charges or convictions.
These information checks are done with the consent of a prospective employee, for employers and employees who are not covered by the Criminal Records Review Act (those who work with children or vulnerable adults and are employed or licenced by the provincial government.)
“Through police information checks, non-conviction information is routinely disclosed to employers without any evidence that these checks result in better hiring decisions,” Denham said in her report.
There had been a number of complaints from citizens in B.C. and over the last decade it became apparent police have been providing a broad scope of information.
“One of the issues the commissioner in B.C. found was that there was only an option to provide the kind of broad police information check being done and they weren’t doing the kind of older style criminal record check of releasing just conviction information,” says Rosalie Cress, a lawyer with McCarthy Tétrault LLP in Vancouver.
“As employment lawyers we usually recommend that employers don’t want to know information where it could lead to a human rights complaint,” adds Cress.
As a result of the investigation, the privacy commissioner made the following recommendations:
1. Police agencies should stop releasing mental health information in employment-related background checks;
2. Government should enact legislation to prohibit the release of non-conviction information for record checks for jobs outside the vulnerable sector;
3. Police departments should stop releasing non-conviction information for positions where the employee is not working with children or vulnerable adults;
4. Police 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;
5. Government should require the centralized office currently responsible for processing criminal records checks under the CRRA to undertake all record checks for vulnerable sector employees, not only for employers who receive provincial funding.
“It really makes sense to have a centralized agency where people are specialized in assessing the risks,” says Cress.
In fact a number of options could be looked at to handle requests include private, third-party companies, says Tamara Hunter, associate counsel and leader of Davis LLP’s privacy law compliance group in Vancouver. She says the report “really does require government attention.”
Employers that want to avoid getting more information than they need can arrange for a private third party to receive the results and only advise the employer of conditions or charges relevant to the particular job description.
“So long as the person who is applying understands that’s the process it seems like a much more fair way to do it so employers are not getting information that might infringe on prohibitive grounds of discrimination,” says Hunter.
As part of the privacy commissioner’s investigation about 20 people shared their personal stories to show how police information checks affected them.
One woman recalled when she went to the police to get a record check completed as a requirement for an office job. She didn’t appreciate the distinction between a criminal record check and a police information check and was surprised to see information about her suicide attempt included in the results.
She had experienced depression but was doing well. The results of the information check put her in the position of having to explain a prior suicide attempt to prospective employers, even though it should be of no relevance to the job she was seeking. She had yet to be hired.
In another case a man called a suicide hotline and police came to his house to take him to hospital. When he wanted to volunteer for his child’s sports team a police information check came back with a result noting: “harm to self.” He elected not to provide the information to the sports association and withdrew as a volunteer.
“The mere fact someone has called a suicide hotline is really not something a prospective employer needs to know and it’s quite an infringement on a person’s privacy for that kind of information to be disclosed,” says Hunter. “Frankly, a lot of us were shocked when that was being included and most employers wouldn’t even want to know that.”
Denham also examined what other provinces release on background checks and B.C. was shown to be on the higher end of the disclosure spectrum. Alberta has a similar approach to B.C., in particular the Calgary Police Service only offers the same broad type of information check.
Some provinces don’t have any guidelines — such as Manitoba, Quebec, and Nova Scotia. In Saskatchewan only information on criminal convictions is released, as well as recent charges, but mental health information is not released. Ontario’s guidelines provide for a broader range of options.