News

Police Background Checks

May 21, 2015 at 11:09am

magnifyingGlass-UFCW175A Police Background Check (PBC) is done by employers or organizations to determine whether a potential employee or volunteer has engaged in any conduct that might make them unsuitable candidates because of concerns about honesty, integrity or safety. These checks might be called a police reference check, criminal records check, criminal background check, or police records check.

PBCs have become standard practice when someone applies for a job, an educational opportunity, or volunteer position that would give that person access to vulnerable people such as children, the elderly, the disabled, a security- sensitive position, or access to large amounts of money.

If a background check is requested from the local police force, they will search their own database and may contact other local police departments as well. They will usually contact the RCMP crime database and U.S. national and state crime databases too. The range of information in police databases may vary considerably.

Police databases contain a lot of information besides just criminal records. They can include complaints made by or about an individual, information about someone’s mental health, pending charges, charges that resulted in acquittal or other non-conviction charges, and allegations of child or spousal abuse. Where the PBC is required by statute or bylaw, the law often states specifically what information the police are required to provide.

In a unionized workplace, an employer cannot ask randomly for a PBC without the Union’s knowledge. There are, however, some decisions which have allowed for PBCs implemented by the employer with no Union consultation.

The leading decision on this (KVP Co. Ltd. and Lumber & Sawmill Workers’ Union Local 2537[1] established that when an employer implements a rule without consulting the Union, discipline will only be seen to have just cause if the rule meets the following criteria:

  • It is consistent with the collective agreement
  • It is reasonable
  • It is clear and unequivocal
  • It was brought to the attention of the employees(s) affected before the employer attempted to act on it
  • Employees are aware that breach of the rule could result in discharge
  • The employer enforces the rule consistently

 

In a 2010 case, Arbitrator Moore[2] upheld the City of Vancouver’s (the employer) decision to give its Firefighters 12-months’ notice of a new policy that would require employees in certain positions to submit updated criminal checks to the employer every five years.

The Arbitrator stated it was “reasonable for the employer to take proactive steps to carry out due diligence in assessing the suitability of employees” and that the employer’s policy was a legitimate exercise of management rights which satisfied the criteria set out in the KVP case. Out of this emerged some principles that are relevant to all employers;

  • The criteria used for designating positions that will be subject to criminal reference checks must be carefully considered and drafted;
  • An employer must establish a bona fide objective, and ensure that criminal record checks are relevant and necessary both to that objective and to the operation of its program or activity;
  • Subject to any specific language in a collective agreement, an employer may be required to compensate employees (potentially at an overtime rate) for their time when they obtain a criminal reference check plus expenses.

 

In another decision dealing with a city and its firefighters, the employer (the City of Ottawa) instituted a rule obligating firefighters to consent to periodic criminal record checks[3]. In this case, Arbitrator Picher held that this type of rule was to be dealt case by case and should balance the privacy rights of employees against the employer’s right to information that may be relevant to the administration of the workplace.

Arbitrator Picher added that some types of employment (for example, those involving airport security or the provision of services to vulnerable children) may by their very nature warrant continuing scrutiny in this respect[4].

If you have questions about Police Background Checks and your work, please contact your Union Rep.

For information regarding your rights and Police Background Checks, visit the Information & Privacy Commissioner (IPC) of Ontario website at ipc.on.ca. You can also find a useful reference on the topic here.

1 KVP Co. Ltd. and Lumber & Sawmill Workers’ Union Local 2537 (1965), 16 L.A.C. 73
2 Vancouver (City) v. Vancouver Firefighters’ Union Local 18 [2010] B.C.C.A.A.A. No. 81
3 Ottawa (City) and Ottawa Professional Firefighters Ass’n. (2007), 169 L.A.C. (4th) 84
4 Labour Arbitration in Canada, 2nd Edition, Mitchnick and Etherington C. 14.1 and 14.2.6