Quick tips on finding a balance between a candidate’s rights and the employer’s needs.
The recruitment processes may require several steps; take a lot of time and considerable energy for employers.
More specifically, the exercise requires detailed knowledge of the laws that protect employees or future employees, including, among other things, the right to privacy, and the limitations surrounding the right of employers to ensure that the candidate matches the profile they are seeking. It is important to note that the balance between these two elements is crucial.
As a pre-employment screening expert, Groupe Sécuri-Check offers a range of guidelines and terms to follow before taking on the pre-employment screening process
If you are considering carrying out a pre-employment screening:
1. Formal consent
The candidate must always consent to the verifications in a formal and written manner. It is important that the nature of the background check, be accurately stated on the form or document signed by the employee or future employee. The form should therefore clearly indicate which sources will be consulted, and also indicate that the applicant authorizes these sources to disclose any relevant information related to his/her application. Similarly, the justification for the verifications must be clearly indicated in the same document. In this way, an employer does the freedom to verify information as they please. Only the information necessary for the job applied for can be collected. Keep in mind the different grounds of discrimination prohibited by law! Similarly, the credit report may be verified only in cases where the solvency factor and payment experience are relevant to the assessment of the application.
If a third party is responsible for collecting the relevant information on behalf of the employer, this must be clearly indicated on the consent form signed by the candidate.
2. Criminal records and medical questionnaires
Criminal records that have been pardoned or that are not related to the position the candidate is applying for, should not be reflected. For this reason, an employer must not eliminate a candidate on the basis of previous convictions if they are not related to the position sought, despite the prejudice the employer may have against a person who committed such an offence.
Furthermore, the employer must limit their questions regarding the applicant’s health to the questions only relevant in determining whether the applicant has the physical abilities required to meet the justified requirements of the position and whether the position can be modified to accommodate a disability.
f a third party is responsible for collecting the relevant information on behalf of the employer, this must be clearly indicated on the consent form signed by the candidate.
3. Information retrieved online
The employer may not use anything they find online about the candidate if that information has not been expressly and voluntarily provided to them or if it is not related to the position or task in question. For instance, the verification of candidate’s publications on social media , if relevant to the job applied for, should be identified as one of the sources of information to which the employer may have access to in the course of the research, so that the candidate can provide prior consent.
4. Labour laws in Canada
Verification of the candidate’s eligibility to work in Canada should never be taken lightly and should never be handed over to a third party without a cross-check of the results obtained, as the third party could waive any liability in this regard. When the status of the candidate is temporary, it may be necessary to repeat this check in the course of their employment.
5. Pre-employment screening for current employees
Pre-employment checks should be conducted periodically when specific conditions are required in relation to the position sought (solvency, lack of criminal record related to the position) or the applicant’s status (temporary immigration status expiring during the course of their employment). This can be the case, for example, of a criminal record check, when employees are in contact with a vulnerable clientele such as children. Pre-employment screening must be revalidated each time an employee is promoted or reassigned, even if the employee remains with the same organization but the conditions of the new position have specific requirements.
Caution must be taken if you are a former employer and you are contacted for verifications of one of your former employees.
If you are about to provide information about a former employee:
1. Formal consent
It is important to obtain the consent of the person about whom you will be providing information, again in writing and formally. It is important to respect the limits of what you have agreed to in the written consent. It is important not to disclose information that goes beyond the framework prescribed by the previously signed agreement as not to request information without consent. Respect of privacy is a two-way street. Thus, only relevant information relating to the work performance can be communicated to the potential employer, duly authorized to collect the information.
2. Written Information
In order to protect you as an employer, we suggest that you insist, where possible, on providing written information in order to maintain complete control over what has been said. Always with protection in mind, the tone to be used when disclosing information would be objective, factual and concise.
3. Formal Disclosure Policy
On a broader scale, in the case of an organization with several employees, adopting a formal disclosure policy may be the most appropriate way to standardize personal information disclosures and thereby protect both the employer and the employees. Such a policy should specify who in the organization is authorized to provide references and limit the number of persons authorized to speak on behalf of the organization in such a context. This will prevent inaccurate references being provided by a complacent former colleague or, on the contrary, in conflict with the candidate. Caution should be exercised when the employer is questioned about the reasons for termination, as these may be subject to a confidentiality agreement.
The various recommendations and caveats expressed above are not intended to replace the opinion of legal counsel with respect to a specific situation, but rather to provide general guidance. When a particular issue arises that may involve your organization’s liability, we recommend that you consult a lawyer.