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non-conviction information such as mental health apprehensions, 911 calls, casual police contact, unproven allegations, withdrawn charges and acquittals.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?