July 9, 2015

Employers and unions both have an interest in ensuring that recruitment, hiring, and promotion processes are fair and avoid bias and discrimination. When is it appropriate to seek a criminal record check? Is an employer entitled to consider an employee’s disciplinary record in reaching a decision to award a promotion? In this session, a panel of experts will provide insight into these and the following issues:

  • Creating job postings and conducting background checks: Should job postings specify which background checks an employer will require? When is it appropriate for an employer to seek a criminal record check? A vulnerable sector check? A credit check? Can background checks be conducted before an employment offer is extended? What information are employers legally entitled to request regarding candidates’ previous jobs? What sort of social media investigations can employers conduct regarding a candidate? How can employers protect themselves from violating applicants’ privacy rights and human rights when conducting background checks? Must a prospective employer obtain explicit consent to perform a background check on a job applicant? If employers intend to base hiring decisions on background checks, do they have an obligation to make sure the information they have obtained is accurate?
  • Conducting background checks during employment: Do different standards apply when an employer seeks a criminal record check (or renewal of a criminal record check) of a current employee, rather than a prospective employee? Who should bear the costs of the background check in this context?
  • Responding to police record checks: What steps should be taken if a non-conviction record (e.g. withdrawn charge) turns up on a prospective or current employee’s criminal record check? Should human resources personnel provide the hiring manager with police record information other than convictions? What if a conviction shows up on a renewal check for a current employee? Should the employee be fired? Is there discretion? If so, who should exercise it, and how?
  • Promoting employees: Is an employer in a unionized workplace entitled to consider an employee’s disciplinary record in reaching a decision to award a promotion? What difference does collective agreement language make in the weight to be accorded to promotion criteria (e.g. seniority, skill and ability, service, qualifications, etc.)? What role do collective agreements typically assign to unions in the promotion process?
  • Assessing remedies: What remedies do adjudicators award when an employee’s human rights or privacy rights are violated in the hiring or promotion process? What remedies are arbitrators likely to award when hiring or promotion procedures contravene the collective agreement?