Privacy Commissioner says Criminal Record Check Process in BC is “Broken”

Privacy1In a 44-page report released April 15, 2014, BC Information and Privacy Commissioner Elizabeth Denham expresses her opinion that the current process in British Columbia for conducting employment-related record checks is “broken” and not meeting the needs of citizens or employers. Denham described Investigation Report F14-01: Use of Police Information Checks in British Columbia as one of the most important, if not the most important, investigation reports she has issued.

The report examines the increasing use of employment-related record checks or “police information checks” as an employment screening tool in both the public and private sector, and the impact these record checks have on British Columbians. In it, the Commissioner describes her investigative process, which included consultation with various stakeholders and a review of record check practices in various other jurisdictions, and provides a thorough analysis of the current BC system.

Denham identifies several flaws in the existing process, and explores the system’s possible negative consequences for employers, prospective employees, and the public generally. Some of her more striking observations and conclusions include:

  • The majority of record checks in BC occur through a process that was developed by police agencies rather than created by Government and governed by legislation;
  • There is a lack of evidence showing that employment-related record checks are an effective employment screening method;
  • Research shows that indicators of whether an individual will re-engage in criminal activity are ineffective for assessing whether an offence will be perpetrated at an employer’s expense;
  • There are significant privacy and public policy reasons to question the validity of an individual’s consent in the record check process. The ability to seek employment is generally not a discretionary choice for British Columbians;
  • It is likely that many employers who require police information checks from prospective employees are collecting more personal information than is necessary and/or are contravening privacy laws in the process;
  • The practice of including information related to an individual’s mental health in a police information check greatly opens up the potential for routine discrimination by employers on the basis of mental disability (which is prohibited by the BC Human Rights Code);
  • Police information checks also raise serious concerns under the Human Rights Code about an individual’s right to be free from discrimination based on criminal convictions unrelated to employment, as well as numerous Charter issues, including the presumption of innocence which is fundamental to a democratic society; and
  • The BC record check process is out of step with other jurisdictions in Canada and around the world. The amount and sensitivity of the personal information that BC police agencies routinely disclose is on the extreme end of the spectrum of employment-related record checks.

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The Commissioner concludes her report with a set of five recommendations for reform, including:

  • Government and police boards should immediately direct police to cease providing mental health information in police information checks;
  • Government and police boards should direct police to stop releasing non-conviction information for positions outside the vulnerable sector (work with children and vulnerable adults); and
  • Government and police boards should direct police agencies to implement a record check model that allows individuals to request only conviction information that is relevant to the position for which they are applying.

Implications for Employers

Clearly, the Commissioner’s report highlights a number of significant issues for BC employers who request police information checks from prospective employees, most notably the possibility that some employers may be violating privacy and human rights legislation by requiring such disclosure. In the conclusion to her report, Denham emphasizes the potential under the current system for stigmatization, discrimination, and other negative impacts on citizens, and provides some words of wisdom for employers that bear repeating here:

    Employment-related record checks can play a role in assisting employers to determine the suitability of an individual for a specific position. However, other screening mechanisms such as interviews, written examinations and reference checks play a more important – and more reliable – role in this process. More importantly, once an individual has been hired, an employer should ensure that appropriate controls are in place to prevent and detect employee misconduct in order to reduce and manage risk within the workplace. A record check cannot make up for a lack of effective supervision or safeguards over personal information and other valuable assets of an employer.

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NOT LEGAL ADVICE. Information made available on the Kent Employment Law website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action, based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. One of our lawyers would be pleased to discuss any specific legal concerns you may have.

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