June

In June2013, the Supreme Court of Canada ruled against an employer’s random alcohol testing program, concluding that it was unreasonable. In the 6-3 decision, the Court side with the Communications, Energy and Paperworkers Union of Canada, which brought a grievance against Irving Pulp and Paper.

The Court based much of its decision on the earlier finds of an arbitration board and the fact that there were zero positive test results over a 22 month period at the company’s St. John, New Brunswick mill. ON behalf of the majority, Justice Rosalie Abella wrote as reported by CTV News: “In the end, the expected safety gains to the employer in this case were found by the board to range “from uncertain . . . to minimal at best” while the impact on employee privacy was found to be much more severe. “Consequently, the board concluded that the employer had not demonstrated the requisite problems with dangerousness or increased safety concerns as workplace alcohol use that would justify universal random testing.

Small employee background screening mistakes continue to give rise to large class actions with big settlements. If you obtain background screening reports from a third-party agency regarding your job applicants or employees, and have not reviewed your background screening policy and practices in a while, now is a good time to do so.

Here are four things to look for:
1. Are you supplying job applicants and employees with the correct version of the federal notice entitled “A Summary of your Rights Under the Fair Credit Reporting Act”? The new version references the Consumer Financial Protection Bureau throughout the notice while the old version references the Federal Trade Commission.
2. Does your background screening consent form (“Disclosure and Authorization”) contain a release of liability? 3. Do you provide BOTH a pre-adverse action letter and a post-adverse action letter when excluding an individual based upon a background screening report from a third-party vendor, and do those letters contain the correct information?
4. Do you have a blanket policy that excludes all convicts or felons? It is important that employers update their background screening policies to reflect recent changes, and consult with counsel before excluding an individual based upon a background screening report.

A Government agency that carries out criminal records checks has introduced an online checking service.The Disclosure and Barring Service (DBS), which has an office in Darlington, has introduced the Update service, which will allow users to take their disclosure certificate from one job to the next, eliminating the need for repeated checks."The Update Service represents a step change in the way criminal records checks can be administered - online, said a spokesman for DBS."Subscribers to this service will have far greater control over their checks and organisations will benefit from savings as well as a being able to deliver a faster and streamlined recruitment and employment process."