When the Skeletons in the Closet Start to Rattle … !

By P.A. Neena Gupta and Lesley Love

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Overview

1. Background Checks

2. Credit Checks

3. Misrepresentations on Resumes

4. Disciplining for Off-Duty Conduct

5. Employee conduct on Social Media

6. Managing the Immigration Implications

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Background Checks

• Background checks are a screening tool• Criminal Record• Credit Record• Academic• References

• Significant “errors” on resume or applications• Exaggerated academic credentials• Inflated job titles or responsibilities• Lies about reasons for leaving previous jobs

Obtain Consent to Background Check

• Written consent required for:• Criminal background check• Credit checks• Confirmation of employment information from

previous employer• Academic confirmation

• Ensure consent broad enough to permit obtaining information from individuals other than named or specific employees

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Tales from the Crypt!

Geraldine hired the perfect candidate after checking the references he supplied on his impressive resume.

Employee ends up being a complete disaster. References were all false; friends at entry-level positions pretending to be managerial or director-level hire.

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Employment Contract

• Make offer subject to satisfactory background checks

• If background checks unsatisfactory, offer withdrawn or if employee has started work, grounds for termination

• Indicate that any misrepresentation on the resume or application form constitutes grounds for termination with just cause

Lying on a Resume

• Is your offer letter conditional upon reference checks being made and passed?

• Explicitly advise lying on resume grounds for termination

• Do you perform thorough reference checks?• What if a candidate lies on their resume? • What if you don’t discover the lie until after the

candidate is hired? • If an employee misrepresents their qualifications, it can

constitute just cause for dismissal. • Is the misrepresentation “material”? i.e. was the qualification

they lied about to have a key reason for you hiring them?

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Criminal Background Checks

• Mandatory• Children• Vulnerable adults• Bonded employees

• Highly Recommended• Handling cash or inventory• Managerial or supervisory employee

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Criminal Background Checks

• Private background companies can do a “query”• Name and date of birth• Requires written consent (usually on company form)• Often require copies of 2 pieces of ID

• Initial “query” based on employee name and date of birth

• Can lead to false positives (how many John Smiths born on March 1, 1972 in Toronto?)

• Will not catch people who have changed names (e.g. marriage)

Tales from the Crypt!

Jamie MacDonald, born November 1, 1972 in Sydney, Nova Scotia was nearly fired from his job as a medical technician when a criminal background check showed NUMEROUS convictions for fraud, assault, aggravated assault. Employer confronted Jamie, who indicated it was not him.

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Criminal Background Check

• Only authoritative background check is “fingerprint” test

• Can only be done at police station• 3 week to 3 month delay, depending on location• The good “Jamie” was cleared

You Discover the Candidate/an Employee has a Criminal Record – What Next?

• Employer can only consider criminal offences for which no pardon has been granted

• However, if unpardoned, the candidate/employee has no protection under the Code; pardon not sufficient for immigration purposes

• Some case law suggests that Code even protects against discrimination on the basis of pending charges

• Should not consider provincial offences (such as highway traffic act) unless directly relevant

Credit Checks

• Why ask for one?• Is the employee going to be handling money?• Is the employee in a key financial position?

• Employer’s are entitled to perform Credit Checks, but must comply with Consumer Protection Legislation.

• A candidate must be notified in writing, in bold type or underlined and in letters at least 10 point in size, before the check is done

• If the candidate asks, they must be given the name and address of the consumer reporting agency supplying the report

• Have the candidate sign a consent before conducting the check

• Be sure to keep the information received confidential

Termination for Off-Duty Conduct

• An employer must show a “nexus” between the employee’s misconduct and the employer’s “legitimate business interests.”

• In Kelly v. Linamar, an employee was terminated days after being charged with possession of child pornography.

• Grounds: the companies reputational loss in the community.

• Linamar lead extensive evidence regarding its charitable work with children’s programs in the community.

• The employee plead guilty a year and a half later.

• Employee brought a wrongful dismissal claim against Linamar.

Off-Duty Conduct – Criminal Offences

• Criminal charge does not automatically mean just cause

• Do not rush to judgment

• Consider the nature of the offence• Is it related to the job? • Is it relevant to the performance of his or her job duties?• Is the position high profile? In the media?• Does the charge interfere with the employee’s ability to discharge position?

(e.g. travel, time in jail)

Termination for Off-Duty Conduct

• The judge dismissed the claim, stating:• Linamar has over a long period of time built up a good reputation which it

jealously protects. That reputation includes the promotion of its activities with young people outlined earlier. A company is entitled to take reasonable steps to protect such a reputation and the termination of Philip Kelly was just such a step. The employer has demonstrated just cause on far more than the balance of probabilities.

• Interesting, the judge went on to note:• Subsequent to the decision to terminate two things happened which, had they

happened earlier, would have strengthened the employer’s position even more. Mr. Kelly was eventually convicted of the charge of which he was merely suspected at the time of his termination and the identity of his employer which had been known only to others within the corporation became a matter of public record. 

• In other words, there was an element of risk involved. What would the consequences have been for the employer if he had been found not guilty?

Consequences of Making False AllegationAgainst Employee

• John Pate was the chief building official for the Townships of Galway and Cavendish from 1990-1999

• Shortly after accepting a demotion following an amalgamation of the townships, he was accused by his new boss of stealing building permit fees

• Told to resign or the police would be notified – Pate refused and was charged with theft

• Acquitted at trial in 2002 where it was revealed that the employer had withheld evidence from the OPP, including an internal investigation prior to Pate’s termination that found he and others were innocent

The Decision

• Ultimately awarded $550,000 in punitive damages

• Significant misconduct by the employer lasting over a lengthy period, including intentional withholding of exculpatory evidence

• Devastating impact on employee’s life, including his marriage and prospects for future employability

Use of Social Media

• Are you “friends” with your employees on social media?• Lougheed Imports Ltd. (West Coast Mazda) v. UFCW Local 1518• Employee making threatening posts on Facebook:

• “Sometimes ya have good smooth days, when nobodys f**king with your ability to earn a living....and sometimes accidents DO happen…”

• “All I Gotta say is they pissed off the WRONG GUY ....big time”• “west cost detail and accessory is a f***in joke…don’t spend your money

there… ripped off a bunch of ppl I know.”

• The Employee’s supervisor was “friends” with him, and monitored the conversation. Ultimately terminated his employment.

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Lougheed Imports Ltd. (West Coast Mazda) v. UFCW Local 1518

• In upholding the terminations, the B.C. Labour Relations Board made the following findings: • The offensive comments made by the employee about

his supervisor amounted to insubordination• The employee had over a hundred “friends” on

Facebook, including co-workers and his supervisor. As such, he did not have any reasonable expectation of privacy when he posted on Facebook

• He made comments damaging to the employer’s business and reputation.

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Lougheed Imports Ltd. (West Coast Mazda) v. UFCW Local 1518

• Social Media can be just cause for termination:

• Insubordination• Dishonesty• Conduct detrimental to employer

• Social Media unlikely to be considered “private” if available fairly widely

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Social Media – Double-edged Sword

• May learn of information that reveals too much information• Religious affiliation• Sexual orientation• Illness or disability• Family illness• Pregnancy/number of children

• Exposes employer to accusation of discrimination

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Social Media – Double-edged Sword

• Have social medial policy for HR• If using social media in recruitment or

promotion, make sure person vetting person on internet knows what is relevant and not relevant

• Ensure person making decisions not person surfing internet and is only given relevant information

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Immigration Implications

• Foreign nationals are inadmissible to Canada due to past criminal activity if they were convicted of an offence in Canada or were convicted of an offence outside of Canada that is considered a crime in Canada

• Canada does allow foreign nationals with criminal records into Canada under certain circumstances

Overcoming Inadmissibility

• What to do if you have a foreign national with a criminal record, who needs to come to Canada?• Temporary Resident Permit• Deemed Rehabilitation• Rehabilitation

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Temporary Resident Permit

• If criminally inadmissible but have a valid reason to travel to Canada, a foreign national may be issued a TRP• Less than 5 years has passed since the end of the

sentence and/or• Benefit to Canada outweigh the risk of re-offending

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Temporary Resident Permit

• Reasons for a TRP to be granted• Work for employer either abroad or in Canada that

benefits economy• Cultural benefit to Canada• Personal reasons – spouse, children, ill relative

• Minor crime is typically not a factor

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Temporary Resident Permit

• A permit will be granted for the length of time a foreign national is required in Canada (i.e. 1 year work permit = 1 year TRP)

• TRP’s must typically be applied for at the Consulate, in certain circumstances a TRP may be requested and granted at the port of entry

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Deemed Rehabilitation

• Under the Immigration and Refugee Protection Act, Deemed rehabilitation means that enough time has passed since the conviction and conclusion of the sentence that the foreign national is considered absolved of their crime

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Deemed Rehabilitation

• Considerations for Deemed Rehabilitation:• the nature of the crime• how much time has passed since completion of

sentence• number of crimes committed

• Deemed Rehabilitation is only an option if the crime would be punishable by a maximum term of less than 10 years

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Rehabilitation

• Rehabilitation removes the criminal inadmissibility of a foreign national

• If foreign national is not eligible to be deemed rehabilitated you must apply for individual rehabilitation to enter Canada

• Rehabilitation means that the foreign national leads a stable life and that is not likely to commit new crimes

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Rehabilitation

• To apply for Rehabilitation:• At least 5 years must have passed since the

completion of sentence• An application must be submitted to a Consulate• Current processing times are approximately 2 years

Overcoming Inadmissibility

• Documents required:• Court records • Evidence of completion of sentences• Police clearance reports• Reference letters• Invitation letter• Photos• Fee

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Canadian Pardon

• If the foreign national has a criminal conviction from within Canada a Pardon (now a Record Suspension) will be required prior to re-admittance to Canada

• Must carry pardon with them when entering Canada

Canadian Pardon

• In order to be considered for a record suspension under the Criminal Records Act, a specified period of time must pass after the end of the sentence imposed

• The usual waiting period for offences:• ten (10) years if prosecuted by indictment• five (5) years for summary convictions

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Criminal Ineligibility in the U.S.

• Like Canada, foreign nationals with a criminal history will be denied entry into the U.S.

• Not all criminal convictions create an ineligibility to enter the U.S., but any past criminal record must be declared

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Waiver of Ineligibility

• If you are ineligible to enter the United States, you may apply for a waiver of ineligibility

• Must be done well in advance of any planned entry

• Many of the same documents are required

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Overcoming Inadmissibility

• Foreign nationals who are inadmissible due to a criminal past may be allowed entry

• Plan ahead, ask questions and be prepared

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Thank You

montréal · ottawa · toronto · hamilton · waterloo region · calgary · vancouver · beijing · moscow · london

P.A. Neena GuptaGowling Lafleur Henderson LLPBarristers & Solicitors50 Queen Street NorthSuite 1020Kitchener, ON, N2H 6M2Direct Tel: 519.575.6910Direct Fax: 519.571.5001Email:  neena.gupta@gowlings.com

Thank You

montréal · ottawa · toronto · hamilton · waterloo region · calgary · vancouver · beijing · moscow · london

Lesley LoveGowling Lafleur Henderson LLPBarristers & Solicitors50 Queen Street NorthSuite 1020Kitchener, ON, N2H 6M2Direct Tel: 519.569.4562Direct Fax: 519.569.4062Email:  lesley.love@gowlings.com