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Employers access to your record: What are your rights?

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Having a criminal conviction can present many challenges for individuals (e.g., employment, volunteering, schooling), as there exists a substantial amount of stigma associated to having a record. For the 4.2 million Canadians that have a criminal record, one of the most challenging feats can be in relation to finding employment.

It has increasingly become common practice for employers to ask applicants whether or not they have one or more criminal convictions that have not been pardoned (or suspended) by the government. Consequently, many applicants have been swayed or required to disclose their criminal history to their potential employers when seeking out a job prospect.

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This placed further barriers and stress on individuals with a criminal past, when seeking employment, promotions, or new job opportunities.

In these situations, it is essential for individuals to be aware of the legislations in place which protects their human and privacy rights.

Knowing your rights:

Some individuals are surprised when their employer asks them if they have committed a crime for which they have not received a pardon; the employer is within their right to ask, as it’s legal under the Canadian Criminal Code. This also applies to background checks. Employers are permitted to investigate applicants, provided they received written consent from the applicants before moving forward with a background check. Employers can also ask applicants if they have a criminal record.

However, individuals can choose whether or not to divulge information regarding their criminal history to their current or future employers once they have received a pardon or record suspension. This practice came into effect in 1985.

It is important to note, that employers must establish that there is a valid reason to obtain a criminal background check that is in relation to the position in question.

Many provinces and Canadian jurisdictions do not allow employers to refuse an applicant with a criminal conviction, unless they can prove that the conviction would negatively impact how the individual could perform their job.

It is also illegal for companies to single out one particular candidate and requiring them to solely obtain a background check.

What employers can access:

When employers do obtain a criminal background check from applicants there is specific information that is made available and can be accessed.

First, there are two types of criminal record checks. The first is a vulnerable sector screening and the second is a criminal background check.

The vulnerable sector screening identifies whether or not an individual has a criminal record, and whether an individual has received a record suspension or pardon for any sexual related offences. This type of screening process is generally used for individuals applying to volunteer or employment positions where they are responsible for children, seniors, or other vulnerable persons.

In comparison, the criminal record check process only verifies whether an individual has a criminal record or not. With this check, employers will only be able to see whether or not the individuals’ record is “clear” or “not clear”. The police background check does not give detailed information on the offences or any history if the record is “not clear”.

However, the “not clear” outcome does not always indicate that the applicant has a record. Absolute, withdrawn, or stayed charges that have not been removed from an individual’s criminal record may indicate that a record is “not clear”.

In certain cases, individuals who have the same last name and date of birth may receive a “not clear” result on their background check if one of the individuals has a record. This is a result of the fact that background checks only use a name and date of birth, and not the full fingerprints, which is the unique identifying marker for every individual.

Consequently, this “not clear” outcome may force applicants to disclose their history, both criminal and not, and any contact with the police in hopes to potentially obtain employment.

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