Background Checks: What Questions are Legally Off Limits?

Background Checks – Screening New Hires While Avoiding Human Rights’ Liabilities

A bad hire is not only expensive but time consuming. According to one source, comprehensive background checks reveal red flags on 60% of job applicants. This means that over half the people applying to work for you may be unqualified.

As Mark Mendelson ([email protected]) recently told me “If you see the benefit of getting a home inspection done before buying a house then you should see the benefit of checking out an employee’s past before hiring him.”

Employers can minimize the costs of hiring mistakes by doing background checks including reference checking. However on the flip side, over-zealous background checking can expose the employer to legal liability under provincial human rights legislation. Let’s look at four such examples:

Criminal background checks

Under the Ontario Human Rights Code, an employer cannot refuse to hire someone because he/she has been convicted of a provincial offence, or crime if he/she has been pardoned.

Credit checks

In some provinces, like Saskatchewan, human rights legislation provides that an employer cannot refuse to hire someone because he is in receipt of social assistance. In Ontario, this prohibited ground only applies to housing.

Social media checks

Collecting information about a job applicant through social media can also result in human rights problems. Personal characteristics of an applicant are often disclosed on a social media site.  For example, if an employer does not know a person’s religion then the employer cannot possibly discriminate on this basis. If however the employer finds out about an applicant’s religion by reading the person’s Facebook posts, and then decides not to hire the person, the applicant can claim the decision was based on her religion. In the United States, some states have passed laws prohibiting employers from asking employees for social media passwords.

Reference checks

Be careful when questioning a former employer especially if you unsure of the relationship between the applicant and the reference. If you ask personal questions about the applicant that do not relate to the job such as whether the person is married, or is frequently sick then an unsuccessful applicant could claim he was discriminated against under human rights legislation.

Lessons to be learned:

1. Consistency: To avoid discrimination claims make sure the pre-employment screening process is the same for all applicants. Two applicants applying for the same job should have the same background checks and investigations run on them.

2. Legitimacy: To ensure that you don’t inadvertently discover characteristics about an applicant that are not relevant to the job, think about retaining a well-regarded background screening company to perform the background checks. This will minimize the risk associated with an untrained or bias interviewer.

If you have any questions about the legality of employee background checks, you can reach us at 1-800- 640-1728 or at [email protected].