Employee Background Checks Canada – Part 2

We recently gave you an overview of some of the regulations and best practices guiding background checks in Canada. In case you don’t have time to go back, the two main takeaways were:

  1. Do not conduct background checks until you have made a candidate a conditional offer of employment.
  2. All background checks should be reasonable to the needs of the job and done with the informed consent of the candidate.

Different Types of Backgound Checks

This week, we’ll go into detail about the different types of background checks an employer might want to undertake and how to do so reasonably and legally. We’ll look at background checks for a candidate’s:

  • education
  • professional qualifications
  • employment references
  • credit record
  • driver’s record
  • criminal background

Let’s get right into it.

Education Background Checks

Different Types of Employee Background Checks Canada - KCY at LAWEducation Background Checks are meant to confirm that your candidate’s educational qualifications are accurate. There are no specific legal restrictions prohibiting employers from confirming the accuracy of a candidate’s qualifications or transcripts with an educational institution. However, employers should exercise caution; contacting a school could reveal where a student was educated or what year they graduated: information from which age and country of origin might be inferred and the potential for discrimination arise from illegal interview questions.

Professional Qualifications Check

This type of background check involves confirming a candidate’s professional experience. Have they worked where they said they worked and for as long as they have claimed? This check does not involve questioning former employers about your candidate’s performance or personality. For that, you will need to consult your candidate’s employment references.

Employment References Check

Whereas with professional qualifications check you are merely confirming that the candidate has indeed worked at a place for a specified period of time, a reference check allows you to get a former boss’s take on your candidate’s competency, workplace productivity and behaviour.

There aren’t any restrictions about contacting references at any point during the hiring process. However, it is advisable to have a standard set of questions to ask references of all candidates to avoid bias or discrimination.

Background Credit Checks

It is permissible to conduct credit checks and refuse employment based on their results. However, they are really only necessary for positions where the employee would have the opportunity to commit theft or fraud such as bank employees or accountants.

Before conducting a credit check, written notice must be provided to the candidate. Because conducting a credit check requires information about the candidate’s age, it should not be performed until after a conditional offer of employment has been presented.

Driver’s Record

This record check requires the person’s name, address and drivers license number and will bring up information about your candidate’s driving and license details. A driver record check is really only a bona fide occupational requirement for jobs like drivers, truckers and some sales positions.

Criminal Background Checks

While you may think it would be nice to know if your job applicant has a criminal record, criminal background checks aren’t always necessary. In most cases, an employment check will suffice. Criminal background checks are reasonable for employees who will be working in positions of trust or dealing with vulnerable populations such as the young, old or disabled. Since criminal background checks can easily bump up against human rights law and privacy issues, it is best that employers demonstrate that there is a bona fide occupational requirement for conducting one. Employers must receive written consent from their prospective employee before performing any sort of criminal background check.

Types of Criminal Background Checks Canada - KCY at LAW Employment Lawyer

There are three types of criminal record checks: Criminal Record Checks (CRCs), Police Information Checks (PICs), and Vulnerable Sector Checks (VSCs). CRCs bring up criminal and summary convictions. PICs disclose convictions, outstanding and discharged charges. VSCs are the most comprehensive. They perform all the checks of both CRCs and PICs and include if the person has received a pardon for a sexual offence conviction. Some industries, such as child and elder care, are required by statute to ensure their employees have undertaken a VSC,

If you need to perform criminal background checks on prospective employees, it is imperative that you do not single out any particular candidate for said check. Doing so would be discriminatory and therefore illegal.

Additionally, you cannot discriminate against someone who has been convicted of an offence unless you can demonstrate that this offence will directly impact their ability to perform the job.

Bonus! Social Media Background Checks

Checking a candidate’s public social media accounts for information that might help you make a hiring decision (i.e. their credentials and social judgement) is permissible under Canadian law. Checking a candidate’s public social media accounts can be done at any time during the hiring process – within limits. For an in-depth look at social media and hiring you can check out our blog on just that where we talk about social media and hiring practices.

Experts in Employee Background Checks

If you are in the process of hiring the perfect employee to join your team and are considering performing background checks, speak with an experienced employment lawyer to protect yourself from legal action. Call us today to book your consultation at 905-639-0999 or connect with us online by filling out a consultation request form.

Ontario Employees’ rights to time off from work

Breaks and time off from work, what are your rights?

Everybody loves time off work. Whether it’s a quick 15 to enjoy a cup of joe or a nice long weekend away at a cottage, you may notice that you are extra productive at work after you’ve had a proper break.

When it comes to the workplace, rest is important for health, happiness, and ultimately, productivity. A well-rested employee is able to give their best. Research has even shown that down time is key to boosting motivation, creativity, concentration and innovation. It helps you to problem solve and process new information. It even improves your immune system.

In short, a well-rested employee is a productive employee. This applies to workers whose labour is physical, mental or emotional.

In Ontario, employees’ rights to time off from work – such as breaks for lunch – are set out in the Employment Standards Act (ESA).

Meal Breaks in Canada

According to the ESA, all employees (with some exceptions) are entitled to one 30-minute break within the first five hours of work. That is, no employee should work more than five hours in a row without a break. Workers also have the option to split this 30-minute break into two 15-minute breaks with the oral agreement of their employer.

Regardless of how an employee chooses to allot their break time, this time must be uninterrupted. They must be completely free from their work duties during their break time.

This 30-minute break time is unpaid. It does not count towards hours of work, overtime or vacation pay. This means that most employees’ work days are actually 8.5 hours in order to achieve a 40-hour work week: eight hours working plus half an hour break each day.

Employees may have additional breaks (often 15-minute ‘coffee breaks’) written into their employment contract. If extra breaks are outlined in your contract then this allotment is binding. However, if the employee must remain at their place of work for these additional breaks, the breaks must be paid.

Ontario Shift Workers

What about employees doing shift work? These employees must have eight hours off work between shifts whose combined time exceeds 13 hours. For example, if you worked at a restaurant, you may work a split shift from 6:00-10:00 am and then 12:00-4:00 pm because the total number of hours worked is only eight. You could not, on the other hand, work a 6:00-10:00 am and then a 12:00-8:00 pm split shift as you would have worked 14 hours with only two hours break in between.

Daily and Weekly Rest

Breaks from work are about more than eating. Employees are also entitled to 11 consecutive hours off work each day. This is referred to as ‘daily rest’. This means an employee who finishes work at 11:00 pm, cannot return to work any earlier than 10:00 am the next morning.

In addition to this 11-hour break between work days, employees are entitled to 24 consecutive hours off work every week or 48 consecutive hours off work in every consecutive two-week period.

Employees cannot opt out of these rights to daily and weekly rest. However, there is an exception for employees who are on call or called in under exceptional circumstances.

Exceptional Circumstances

According to the ESA exceptional circumstances under which an employee may be asked to forgo the above break entitlements apply “only so far as is necessary to avoid serious interference with the ordinary working of the employer’s establishment or operations.”

Examples of exceptional circumstances include emergencies that may arise from or an accident, natural disaster or serious equipment failure.

Unforeseen situations that would compromise the provision of essential public services (such as transit or hospitals) and the unexpected interruption of seasonal operation (such as a harvest) or continuous processes (such as an assembly line) would be considered exceptional circumstances. The need to fill a rush order, meet the demands of busy holiday periods or cover an employee who calls in sick are not.

Well-rested employees are good for business

As an employer you may relish the idea of your employees working as long and as often as possible, in reality, they are far more likely to work effectively if they are given adequate breaks from work.

If you are curious about your rights as an employee or obligations as an employer, consult the employment law experts at KCY at LAW today! Call us at 905-639-0999 or book your consultation today!

Leaves of Absence Ontario – The Ultimate Guide Pt.1

Things come up. Life is full of unexpected twists and turns – some joyful and others trying beyond measure. Life is often a delicately managed chaos. At the best of times, striking a work-life balance demands the gymnastic skills of a Cirque-de-Soleil performer. And then life throws a curve-ball into this juggling act and, much like this circus analogy, things go off the rails.

As essential as work may be, there are other things in life that are far more important: a new baby or an ailing relative, for example. Fortunately, Ontarians have access to several different leaves of absence under the Employment Standards Act (ESA).

Leaves of Absence Available in Ontario

Different Types of Leaves of Absence Ontario - KCY at LAWThe job-protected leaves of absence available to Ontarians are:

  • Personal Emergency
  • Family Caregiver
  • Family Medical
  • Critically Ill Child Care
  • Crime-Related Child Death or Disappearance
  • Reservist
  • Organ Donor
  • Jury Duty
  • Voting
  • Pregnancy
  • Parental

Leave of Absence & Job Protection

Each of these leaves of absence is job-protected, meaning you are entitled to return to your job, in the same position as when you left for your leave. You cannot be fired or punished in any way for taking or planning to take one of these leaves of absence. This means you cannot have your wages or hours reduced or be threatened with suspension or termination. As mentioned, you are entitled to your former position upon returning to work. However, if your position no longer exists, you should be offered one that is comparable in terms of skills, duties, pay, benefits, etc.

Your benefits, length of service and seniority will continue to accrue during your leave. Furthermore, your employer must continue to make contributions towards your benefits plan unless they are shared contributions and you advise your employer in writing that you will not continue your contributions during your leave.

You are entitled to all of these leaves whether you are employed part-time, full-time, on a contract or permanent basis. While these leaves are all unpaid, you are often entitled to access certain Employment Insurance (EI) benefits during these leaves.

Giving Notice for Leave of Absence

Giving your employer reasonable notice of your leave is essential. It allows them to plan ahead and keep their business running smoothly. Two weeks is the generally accepted standard minimum period of notice. However, as many of these leaves are intended to address unexpected emergency situations, it is understood that two weeks notice is not always possible.

Giving Notice for Leave of Absence - Employment Law Advice - KCY at LAW

Employees should strive to give their employers as much notice as possible. With pregnancy and parental leave, this can be fairly straightforward, but with an unexpected medical emergency it might not be. Therefore, regardless of the leave, you should give your employer notice of your leave as soon as possible whether it is two months or two hours in advance.

The Scoop on the Various Leaves of Absence

As this week’s blog title suggests, we are going to break down the various leaves of absence over a couple of posts. So, come back next week to learn the ins and outs of Personal Emergency, Family Medical, Family Caregiver and Critically Ill Child leaves of absence.

If your work position has been negatively impacted by a leave of absence, KCY at LAW has the expertise to ensure that your rights are protected. Call to book a consultation (905) 639-0999 or reach us online.

Update: