What to do if an employee has a criminal past

If it comes to light that your employee has a criminal conviction don’t make rash decisions. Get expert advice and learn the legal dos and don’ts of employing people with a criminal record.

First published on Thursday, Jul 27, 2023

Last updated on Wednesday, Jul 26, 2023

5 min read

When hiring, looking for specific skills plays a huge part in the decision-making process. Whether you’re on the lookout for a Data Engineer with data analysis skills, or perhaps a Site Manager with project management skills—it’s likely you’ll already have the perfect resume in mind.

You might also have a list of attributes you want, like being a team player, or specific qualification requirements. What’s potentially unlikely to be at the top of your checklist is a candidate with a previous criminal conviction…

But before you rule anyone out of the process for good, read our handy advice on how hiring employees with a criminal past can benefit your business and find out the employment regulations you should follow if you do…

Don’t judge a book by its cover, (or in this case an employee by past mistakes)

Having a criminal conviction reduces your chances of employment by 50%. Meaning many Canadian businesses could be missing out on a huge pool of qualified candidates.

In support of this, Alan Price, CEO of BrightHR says: “Employers could be missing out on valuable employees by automatically discarding applications from candidates with convictions.”

“To discount those with past convictions not only carries the risk of claims being brought against employers, but it also limits the talent pool and overlooks the value of inclusivity and equality.”

Changing negative perceptions about hiring employees with a criminal past could be the first step to fixing labor shortages in the Canada as two-fifths (36.9%) of all businesses said they struggle to recruit employees with the skills they need.

Giving people a second chance could help you widen your talent scope and start bridging the skills gap. Not to mention introducing more diverse abilities to your workplace.

Recently, the Ontario government announced various new projects to help people with criminal records find jobs with local businesses. According to Ontario Minister of Labour, Immigration, Training and Skills Development Monte McNaughton, helping ex-offenders find good jobs gives them a second chance at a better life and breaks the cycle of poverty and incarceration.

Avoid landing yourself in legal trouble!

First-things-first, understanding how different convictions affect different jobs, roles, and industries can help you assess if hiring ex-offenders is feasible in your line of work. It can also help you to make sure your hiring process is fair and lawful.

First, you must get consent from a job applicant or employee before running a background check to see if they have a criminal record.

But be careful! asking prospective employees for a criminal background check can also raise invasion of privacy and human rights violations issues for employers. That’s why it’s sometimes best to err on the side of caution and only ask where *completely necessary. *

Remember, it’s unlawful in most provinces for employers to refuse to hire someone because of a criminal conviction unless you can prove it’ll have a direct impact on their ability to do their job.

Conditional job offers are permissible. You can let your prospective candidate know that they’re being offered employment on the condition of a satisfactory background check. This may offer you some protection if you decide to revoke the offer, depending on what is revealed by the check.

But there are certain roles, for example lawyers, accountants, and teachers, where it’s important that all convictions be disclosed during the application process and candidates must undergo a background check.

What should you do if one of your current employees has a criminal past?

If someone’s already employed when you find out they’ve had a conviction that’s been pardoned in the eyes of the law, it might make you rethink their position in your company.

But remember, it may be discriminatory to terminate someone because they have a pardoned conviction–but this protection only applies once the employee has been with you for at least 2 years.

So, to recap:

  • It’s unlawful for employers to refuse to hire someone based on a conviction.
  • It’s discriminatory to terminate someone because of a conviction if they have been employed for more than two years.

Discounting employees with a criminal past could:

  • Put your company at a talent disadvantage.
  • Leave you open to discrimination claims if you refuse to hire someone with a conviction or summary conviction.
  • Hurt your reputation as a fair and equal employer.

Looking for more in-depth employment advice? Talk to our experts

Our expert employment law specialists are available 9am to 5pm, Monday to Friday to answer your questions—even the complex ones! Plus, as BrightAdvice is unlimited, you can call as many times as you like.

Speak to your BrightAdvice team today on 1 888 220 4924.

Not a BrightAdvice customer?Discover more about our expert advice line.

1) Individuals with a Criminal Record in Canada Struggle to Find Jobs During Pandemic (pardonapplications.ca)

2) Labour shortage trends in Canada(statcan.gc.ca)

3) Ontario announces new programs to help those with criminal records find a job(toronto.ctvnews.ca)

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