Police record checks are a poor tool to assess a candidate’s suitability for a job, according to the Canadian Civil Liberties Association (CCLA). An inaccurate, incomplete or inconsequential record can dissuade employers from hiring good candidates, and present a substantial barrier to employment for perfectly qualified individuals.
Police records may include criminal convictions as well as non-conviction information such as mental health apprehensions, 911 calls, casual police contact, unproven allegations, withdrawn charges and acquittals.
Employers commonly believe police record checks are effective at preventing employee fraud and protecting vulnerable clients, but the CCLA has found that:
The available social science evidence does not support this assumption. The academic research that has been done to date has found that past criminal convictions are not correlated with a likelihood to commit a work-related offence in the future. Moreover, these studies focus only on the predictive value of convictions; an enormous range of circumstances may give rise to a non-conviction record, making their utility in employee screening even more questionable.
In other words, if a past criminal conviction can’t indicate whether a candidate is appropriate for a role or likely to commit a work-related crime, surely non-conviction information is even less reliable.
According to the CCLA, despite human rights legislation, there is little to protect candidates and employees from adverse treatment based on unpardoned convictions or non-conviction police records, not to mention the difficulty individuals have challenging or changing this information.
A patchwork of inconsistent laws makes the challenges even greater:
The current legal lacunae largely leave it to requesting organizations and local police services to decide what should be disclosed, to whom, and under what circumstances.…Numerous police services across the country, concerned about protecting vulnerable individuals and potential liability for not sharing seemingly relevant information, have moved toward greater disclosure. Employers and volunteer managers are similarly concerned about protecting vulnerable individuals and organizational assets and are also worried about potential liability for not requesting all available information-and not acting upon information if something is disclosed. Ultimately, it is left up to the individual with some type of notation on their record to find a job, to explain why the police were called to the house four years ago, or to try to navigate complex bureaucratic systems to suppress or expunge their non-conviction record.
The CCLA is calling for governments, police services, employers, and others across Canada to make changes to protect citizens from unwarranted disclosure of unnecessary police records. The association recommends:
- Governments should legislatively prohibit the disclosure of non-conviction records for criminal record and police information checks
- Human rights statutes across the country should be amended to clearly prohibit discrimination on the basis of police contact, non-conviction records and criminal records of conviction
- Provincial and territorial privacy statutes across the country should be amended to provide privacy protection for applicants, employees and volunteers not already covered by existing provincial or federal privacy statutes
- Governments should critically review legislative provisions that permit or require police record checks, as well as government grants and contracts that require the recipient organization to conduct police record checks
- Police services should not disclose non-conviction information on criminal record and police information checks
- Non-conviction information should be disclosed only in exceptional circumstances where there are reasonable grounds to believe that disclosure of this information will mitigate an identifiable risk to public safety
- Employers should critically assess whether current record check practices are necessary
- The majority of positions should not require any form of record check, and in general only individuals who are in ongoing, unsupervised positions of trust with power over vulnerable persons should be subject to a vulnerable sector search
- Employers should avoid checks that may disclose an applicant’s mental health information and history of police contact as they are highly privacy-invasive and likely contravene Canadian privacy law
- Organizations offering jobs that do warrant a criminal record or vulnerable sector check should develop detailed, clear, written guidelines
- The full policy should be public and available to all applicants, and criminal record checks should be requested only after a conditional offer of employment has been extended
The report also calls on privacy commissioners across the country to investigate the collection, use and disclosure of conviction and non-conviction information for employment purposes. If any of those agencies takes up the CCLA’s suggestion, we’ll be hearing more about this issue in the next couple of years.
Read more about the research into police record checks on the CCLA’s website.
What’s your experience with police record checks? Do police and record check agencies offer more information than necessary? How do you deal with a candidate with a conviction or non-conviction police record?
Thanks very much for your comment Mary.
I think employers should be able to know about a candidate’s relevant conviction record, particularly when it comes to hiring in the vulnerable sector. I don’t think the CCLA would disagree with this.
For instance, the CCLA’s report notes:
My understanding of the CCLA’s position is that in many cases (although not in yours) police services are giving out extraneous information to employers and that this is clearly inappropriate.
Moreover, of course there are protections in human rights legislation, but it is not easy for a candidate to prove that an employer has used irrelevant information in their decision not to hire. Therefore, candidates would be better protected by limiting and screening the information given out in the first place rather than by reactive laws that aim to protect individuals from the use of this information after it has been released.
In short, I don’t believe the CCLA is against record checks, in principle. I think they are in favour of clearer and stricter control over their use.
I understand that you have not received any irrelevant information from records checks, but I assume you would agree that nobody should be denied a job due to such irrelevant information when it is released.
Thanks again for your comment! It’s great to hear both sides of this issue.
As an employer, and a valid user of Criminal Record Checks (CRCs), I find much of the arguments – specifically bullet #2 – patently absurd. There are already protections in Human Rights to prevent employers from discriminating against unrelated convictions (eg. hiring an employee with a conviction for theft into a position where theft is a low risk). Making an overt statement that an employer would found to be “discriminating” against someone with any criminal conviction is would have frightening results. With this rationale, I not refuse to hire the spouse of the abused woman in a women’s shelter? I could not refuse to hire a pedafile in a daycare? I could not refuse to hire a child abuser in an elementary school?
Further, I’m not certain why the CCLA is including non-pardoned convictions – these are convictions and thus are part of a person’s record. If a person doesn’t apply to have a pardon, or isn’t eligible for a pardon, then why should that information not be considered? That makes no sense. As an employer, we have frequently had applicants lie about convictions then, once caught, respond with a flippant, “but that was a long time ago.” It either happened, or it did not. Considering vulnerable people is the point – and the vulnerable people are the elderly who rely on caregivers, the addicts and mentally unhealthy who are unable to make appropriate decisions – I can not make an informed hiring decision without the CRC. Where these highly dependent people rely on the employer to make sound hiring decisions about their care aids, we then must know that someone who is known for fraudulent behavior and taking advantage of disadvantaged adults will not be put in such a position. This same person could be hired in so many roles in the community – absolutely – but my responsibility is to my clients.
Employers must consider convictions, and aside from convictions, I have never been supplied with non-conviction-related information; that would be inappropriate. Yes, that information appropriately exists on a police record, including on my own, but the police have never inappropriately shared that with me. Maintaining a police record does not equate to sharing it – show the stats on that occurring, and deal with an office that mishandled the information, but don’t paint them all with the same brush.
Finally, considering the conviction in relation to the specific role an applicant is applying for – that is fundamental due diligence. The CCLA does not differentiate between CRCs and CCRAs (Criminal Record Review Act checks) – perhaps intentionally. The majority of their suggestions could not apply to CCRAs due to the status of those who are most vulnerable. Let’s talk about what is in the public’s best interest.
Thanks for the comment Inga!
I agree that it is a challenging topic, and it’s made more difficult by foreign laws that we have no control over.
I’m glad to hear that there are companies willing to “take a risk” on a candidate with a criminal record because they understand that the person is right for the job and should not be judged exclusively by their past actions.
Thanks for reading!
Adam
Thanks for your comment Paula! It’s great to hear from someone with experience with police background checks.
It is certainly unfortunate that something can approach “best practice” status without the support of evidence such as the CCLA’s research. The use of police record checks seems to me to be based on fear—and fear of liability—rather than reason. And unfortunately, the law often supports it.
You make a very interesting point about the employer acting as a judge/jury. It clearly runs counter to the goals and intention of our justice system, but because it isn’t strictly outlawed (or even regulated), and there’s little will to change things, the practice continues.
Thanks again!
Adam
Thanks Adam for this thoughtful article.
In the early 1980’s the nonprofit agency where I was the Executive Director held a 1 day conference on this topic. We are on the cusp of doing criminal record checks and in the next 30 years it has become “best practice”. I felt then as I do now, it is of dubious value, encroaches on, if not outright violates civil liberties and we place too much confidence in its reliability, accuracy and deterrent effect. Employers are essentially being placed in the role of second judge/jury and determine whether someone (charged, convicted or neither) has the right to secure gainful employment.
Even 30 years ago, as a senior manager I was entirely uncomfortable being place in the role and even then I did not believe that it would be effective in protecting our population of vulnerable clients.