Author: Anna Solmundson
The College of Pharmacists of Manitoba requires pharmacists to undergo criminal record checks and adult and child abuse checks every five years. But, what about other pharmacy employees? Should pharmacy owners require police record checks for their employees?
Employers can request a criminal record check from an employee at any point in employment. However, an employer’s ability to request police record checks from applicants is limited by privacy, human rights and employment law. Generally, if an employer deems a record check is necessary, it should be done during a transition, whether an initial hiring process or before a promotion.
In Canada, there are laws in place to protect individuals and their personal information. Criminal record checks can be very privacy invasive and may lead to discriminatory treatment by employers and potential employers. Criminal record checks cannot be performed without the consent of the person being checked.
Privacy law can prevent employers from collecting unnecessary or unreasonably privacy-invasive information from applicants. The Manitoba Human Rights Commission recognizes unreasonable discrimination on the basis of a criminal record as a ground for a human rights complaint. Where discrimination is based on a criminal charge, the evidentiary onus on an employer will be greater; the employer must clearly demonstrate that the risk to the public, co-workers or the employer’s business is so severe that the mere possibility of a conviction warrants the discriminatory employment decision. Manitoba also prohibits discrimination on the basis of a mental health police record.
Why does the employer want to obtain a criminal check?
An employer should consider their reasons for wanting a record check, and whether a standard hiring process (a request for a resume and cover letter, reference checks, an interview, orientation sessions, job shadowing periods, follow-up reviews, feedback from clients, etc.) would be sufficient to satisfy their concerns. Record checks should be done only where an employer deems it necessary for the position.
A police record check should not be considered a “standard” part of the hiring process, but it may be justified in some situations:
- legislation requires a record check for certain positions;
- having a criminal record would directly interfere with core job requirements;
- the position involves control over a large amount of organizational or client assets, and supervision, safeguards or auditing procedures are not feasible due to the work’s nature;
- the position is one where access will be given to a high-security environment; or
- the position involves unsupervised and ongoing contact with individuals in the vulnerable sector, including the elderly, disabled and children.
If an employer determines it requires a record check, what level of record check is appropriate?
As different types of record checks are more privacy invasive than others, the more sensitive the information requested, the higher the burden is on the employer to justify why you need the information. Three are two levels of checks:
- Criminal Record check: This process verifies whether an individual has a criminal record and provides the applicant with the detailed information that can be legally disclosed.
- Vulnerable Sector check: This process verifies whether an individual has a criminal record, as well as any record suspensions (formerly pardons) for sexual offences and local police records for information relevant to the VS check. The information that can be legally disclosed is provided to the applicant.
A vulnerable sector check can be legally provided only if:
- the request is made by a person or organization responsible for the well-being of a child or vulnerable person;
- the request is made in the context of a specific application for a paid or volunteer position;
- the position being applied for is one of trust or authority towards a child or vulnerable person; and
- the applicant has given their consent in writing.
Vulnerable members of society are defined in the Criminal Records Act as persons who, because of age, a disability, or other circumstances, whether temporary or permanent are (a) in a position of dependence on others or (b) are otherwise at a greater risk than the general population of being harmed by a person in a position of authority or trust relative to them.
If an Employer receives a record check from a potential employee what can it do with it?
From a privacy perspective, the results of a police record check can disclose sensitive personal information and must be treated as confidential. Any record check should be used only for the hiring decision and other consistent employment uses. The results of the record check should be disclosed only to those in the organization who absolutely need to know for approved employment purposes (not the individual’s direct manager or supervisor). Personal information should not be kept for longer than necessary.
From an employment and human rights perspective, an Employer should have a clear, written policy establishing what types of offences are relevant to the specific position and what other factors are considered if a relevant offence is disclosed on a record check. Even within a certain type offence there should be a detailed assessment of whether the actual circumstances of the record are sufficiently related to the position to deny the person the job.
Human rights commissions and tribunals have outlined a number of questions that are relevant to determining whether a record is related to a job requirement:
- Does the behaviour for which the charge was laid, if repeated, pose any threat to the employer’s ability to carry on its business safely and efficiently?
- What were the circumstances of the charge and the particulars of the offence involved – e.g., how old was the individual when the events in question occurred, and were there any extenuating circumstances?
- How much time has elapsed between the charge and the employment decision? What has the candidate done during that period of time? Have they shown any tendencies to repeat the kind of behaviour for which they were charged? Has the individual made efforts or shown a firm intention to rehabilitate him or herself?
- Has a pardon or record suspension been secured, or has a conditional discharge been successfully received?
- Having considered all the above, was the severity of the particular action taken against the potential employee warranted by the nature and circumstances of the charge or conviction?
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.
This article first appeared in Communication Journal, a publication of Pharmacists Manitoba.