British Columbia Privacy Commissioner Recommends Limits on Police Information Checks

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Employers who rely on police information checks to assess the suitability of prospective employees may now have to make do with less information.

By Rosalie Cress on May 2nd, 2014    http://www.bcemployerlaw.com/

In an investigation report released this month, the British Columbia Information and Privacy Commissioner made recommendations which will limit information disclosed by police departments in employment-related police information checks.

Until recently, police departments in British Columbia have included information about prior criminal convictions, outstanding charges, contact with the police during an investigation (e.g., as a suspect or witness), and apprehensions under the Mental Health Act in employment-related police information checks. These checks are done with the consent of the employee, for employers and employees who are not covered by the Criminal Records Review Act (“CRRA”) (previously discussed here).

The Commissioner found that, although these checks can be a valuable screening tool, the scope of information provided to employers – particularly mental health information and non-conviction information which has not been tested in court – was more than was necessary, and not in compliance with privacy legislation.

The Commissioner made the following key recommendations:

1.                Police departments should stop releasing mental health information in employment-related background checks.

2.                Police departments should stop releasing non-conviction information for positions where the employee is not working with children or vulnerable adults.

3.                Police departments should require employers to limit their requests for information about convictions to specific risk categories which are relevant to the person’s employment, such as Drugs and Alcohol, Sex, Violence and Theft and Fraud.

4.                Government should require that the centralized office currently responsible for processing criminal records checks under the CRRA undertake all record checks for vulnerable sector employees, not only for employers who receive provincial funding.

What this means for employers

The Commissioner’s recommendations will undoubtedly result in significant changes to the information available to British Columbia employers about prospective employees.  We of course recommend that all employers take a cautious approach to pre-employment background checks and collect only the type and amount of information reasonably required to start and manage the employment relationship. In addition, in the absence of broader police information checks, we recommend that employers who require pre-employment background checks take the following steps:

  • Carefully consider what information is necessary to assess the suitability of an employee and ensure a safe and secure workplace. The type of information will vary depending on your business and the employee’s work, including his/her responsibilities, the extent to which he/she works unsupervised or alone, and the identity of those with whom the employee comes in contact.
  • Conduct background checks only at the final stage of hiring, when making a conditional offer of employment. If necessary, provide the candidate with an opportunity to provide more details about a background check, to ensure the information you have collected is accurate before making a decision.
  • Ensure that background check information is kept in a safe and secure location and only shared with those who truly need to know.
  • Conduct comprehensive reference checks, and consider extended probationary periods, performance management, supervision and other measures to ensure a safe, secure and productive workplace.

We will keep you up to date on any legislative and policy changes which arise out of the report. The full investigation report, F14-01, is available at  www.oipc.bc.ca/report/investigation-reports.aspx.

Accommodating Family Status

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May 7, 2014   http://www.millerthomson.com
Stephen M. Torscher

The Federal Court of Appeal has ruled that bona fide childcare obligations are included under family status as protected grounds in the Canadian Human Rights Act. In two companion decisions released last week, Attorney General of Canada v. Fiona Johnstone and Canadian Human Rights Commission [2014 FCA 110] and Canadian National Railway v. Denise Seeley and Canadian Human Rights Commission [2014 FCA 111], the Court ruled that employers must accommodate to the point of undue hardship where a workplace rule interferes with the fulfillment of a childcare obligation.

Johnstone [2014 FCA 110]

In the first appeal, Johnstone, the complainant was an employee of the Canada Border Services Agency (“CBSA”). She filed a complaint to the Canadian Human Rights Commission (“CHRC”) after her request was denied to alter her shift schedule to coincide with available childcare arrangements in order to remain a fulltime employee. You can read more about the earlier decisions prior to the Federal Court of Appeal here: http://www.millerthomson.com/en/publications/communiques-and-updates/labour-and-employment-communique/february-13-2013

Refined Definition of Family Status

The Court rejected the argument from the Attorney General of Canada that family status should be limited only to the personal characteristic of whether or not one is part of a family or has a particular family relationship, and does not include any substantive parental obligations such as childcare obligations. The Court determined that prohibited grounds of discrimination generally address immutable or constructively immutable personal characteristics, and the types of childcare needs which are contemplated under family status must therefore be those which have an immutable or constructively immutable characteristic. Human rights protection should not be trivialized by extending to personal family choices such as participation in sports, dance classes, and volunteer activities. Parental obligations at issue are those which engage the parent’s legal responsibility for the child, such as childcare obligations, as opposed to personal choices.

Test for Discrimination on Prohibited Ground of Family Status

Earlier in the proceedings, a point of controversy was whether the court should endorse the “Campbell River test” which requires the complainant to show that the workplace rule results in a serious interference with a substantial parental or other family duty or obligation of the employee. The Human Rights Tribunal and the Federal Court rejected this test and stated that the question to be asked is whether the employment rule interferes with an employee’s ability to fulfill her substantial parental obligations in any realistic way.

The Court confirmed that the test to determine whether there is discrimination on the prohibited ground of family status is comprised of two parts: 1) a prima facie case of discrimination must be made out by the complainant; 2) the onus is then on the employer to show that the policy or practice is a bona fide occupational requirement, and that accommodation would amount to undue hardship for the employer.

After reviewing the criticism of the Campbell River test in the proceedings below, the Court determined that the first part of the test regarding whether a prima facie violation of the complainant’s family status occurs includes four parts. The complainant must show: (i) that a child is under his or her care and supervision; (ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice; (iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and (iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation. The analysis, especially for the third and fourth parts of the test, are contextual and highly fact specific.

In light of these refinements to the approach to family status, the Court analyzed Ms. Johnstone’s situation and found that she had in fact made out a prima facie case for discrimination. Since the appellant had not asserted a bona fide occupational requirement or advanced an undue hardship defence, the analysis of the Court then turned to the issue of remedy.

The Court altered part of the award for loss of wages to exclude a period of time where Ms. Johnstone took unpaid leave to accompany her husband in Ottawa. The Court also varied the judgment of the Federal Court to require CBSA to develop polices with respect to accommodating family status in consultation with the CHRC rather than developing policies satisfactory to Ms. Johnstone and the CHRC as originally ordered.

Seeley [2014 FCA 111]

In the companion case to Johnstone, Seeley [2014 FCA 111], the Court applied the principles and tests developed in Johnstone. Seeley and her husband were both employees of Canadian National Railway (“CN”). They lived near Jasper, Alberta where Seeley’s husband worked. In 1997, Seeley was laid off but remained on a recall list. In 2005, CN experienced a labour shortage and sought to recall Seeley to Vancouver. Seeley sought accommodation on the basis that it would be difficult for her to meet her childcare obligations if she accepted the position in Vancouver and it would not be feasible to leave the children with her husband as he faced the same childcare challenges that she did. Seeley’s seniority rights were forfeited and she was terminated after refusing the recall. At this point, Seeley filed a complaint with the CHRC.

The Tribunal rejected the Campbell River test preferring the approach in the earlier decisions in Johnstone. CN had not considered family status matters involving parental obligations and responsibilities as a protected ground of discrimination that necessitates accommodation. Thus, the Tribunal found that CN had refused to seriously consider Ms. Seeley’s situation and failed to meet the procedural component of the duty to accommodate. CN’s application for judicial review of the Tribunal’s decision was dismissed by the Federal Court.

On appeal, CN argued that Seeley was seeking to enforce her preferred childcare option and had not made reasonable efforts to explore childcare options in her own town, surrounding areas, or in Vancouver. The Court rejected this submission in large part because CN did not provide Seeley with information about her recall to Vancouver that she would have needed in order to make childcare arrangements in any event; she was simply told that she would have to report to the Vancouver terminal in two weeks. The Court further found that CN had failed to provide evidence that it had accommodated Seeley to the point of undue hardship and upheld the lower court’s decision.

Implications for Employers

Family status is a developing area of human rights law. Courts across the country have varied in their approach to defining family status and developing an appropriate test to determine when a prima facie case of discrimination has been made out.

Johnstone and Seeley are the latest decisions to address these issues. Employers must be aware that workplace rules and policies that result in a true childcare problem for employees are protected by human rights legislation and must be accommodated to the point of undue hardship. Employers would be well advised to review their policies and ensure that they have a process in place to comply with this legal obligation.

This month in labor history: Nazis destroy unions

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On May 2, 1933, Adolf Hitler’s storm troopers occupied all trade union headquarters across Germany, and union leaders were arrested and put in prison or concentration camps. Many were beaten and tortured. All of the unions’ funds – in other words, the workers’ money – were confiscated. Former union officials were put on blacklists, preventing them from finding work.

This was one of the first acts of Hitler and the Nazis, who had just come to power in Germany a few months earlier, in January 1933. The German labor movement was one of the largest and strongest in the world, with some 7 million members at the time. The Nazis, much like some far-rightists in our own country then and now, saw that unions exercised significant power by representing workers’ interests and promoting a democratic humanitarian outlook among workers. The unions presented a barrier to the Nazi effort to control all areas of life and create a corporate-fascist state. Therefore, the Nazis made a priority of eliminating trade unions in Germany.

In their place, Hitler set up a “German Labor Front,” which included both employers and workers. Under the guise of providing benefits and services to workers, it supported the racist and pro-corporate Nazi agenda and spread Nazi propaganda among workers. Jews were banned from membership. Collective bargaining and the right to strike were outlawed. Pay and working conditions were decided by Hitler officials. As a result, wages were frozen, and the average workweek increased by 20 percent in just a few years.

Hitler’s destruction of unions was supported by important German business leaders and conservative politicians who shared the Nazi fear of a socialist revolution during the turbulent 1920s and early ’30s. Many of these people wanted restrictions on or complete abolition of unions, which they felt had become “too powerful.” This was one reason why many conservatives helped the Nazis come into power and joined or supported Hitler’s government.

Between 1933 and 1945 thousands of German trade unionists were arrested and imprisoned, and many were tortured, executed or sent to concentration camps.

Thus, the defeat of Hitler and liberation of Germany from Nazism represented a momentous victory for the working class of Germany and the rest of the world. But the struggle for labor rights continues, as we see daily in our own country.

Photo: Communists and trade unionists were among Hitler’s first targets. Here, Nazis rally in front of the headquarters of the German Communist Party (KPD) in 1933 in Berlin. Slogans on the building include: Against war, fascism, hunger … for work, bread, and freedom. Robert Sennecke, Biblioteque nationale de France, Wikimedia Commons

WorkLife: There’s Power in Youth and Unions Working Together

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May 16, 2014    By Gabriel Bako    http://policyfix.ca

While the labour landscape has changed dramatically in Canada in the last 58 years, the legal framework has not. The labour relations framework that we use today in Canada was implemented in 1944 with PC-1003, and the Rand Formula in 1946. The models were based on the Wagner Act of 1935 that was implemented in the United States which gave important legal rights to organized workers. PC-1003 gives legal rights to unions to collectively bargain, represent, and organize workers and the Rand Formula gives the provisions for automatic dues check-offs.

It’s clear that these pieces of legislation are necessary to the viability of the labour movement, however there needs to be some updates. In 1944 organizing was radically different from today, as was the labour landscape. Industrial and manufacturing sectors are shrinking and today the largest employment growth is in the retail/service sector, accounting for 11.5 percent of all employment in Canada in 2011.  These new jobs are mainly precarious and non-union, with fast food and mall jobs becoming more common. They usually pay minimum wage, lack stable hours, and provide few or no benefits. Even union retail/service workplaces jobs are becoming increasingly precarious. The push from non-union competitors sets the tone for how union retail/service workplaces operate their business. In today’s unionized retail/service sectors the employers intentionally hire young workers with the knowledge they aren’t well informed about their workplace rights. In addition, even in unionized retail/service workplaces the opportunity of full-time hours or even a guarantee of set hours is unlikely.

Unions are trying to organize the precarious non-unionized sector, but at the same time they’re finding it increasingly difficult just to protect their current members. Whether union or non-union, the retail/service sector is precarious, and this push comes from neoliberal policies that have become more normalized and mainstream in recent years.

The push from corporate elites to undermine labour legislation has resulted in the weakening of card-check legislation and automatic certifications, attempts to enact so called right to work, attacks on the Rand Formula, and more recently the assault on unions through attempts to impose onerous financial reporting regulations on unions and restrictions on their social justice activities.

This assault on workers is making it increasingly difficult for unions to expand into areas where they need to gain ground. For example, the growing retail sector is characterized by high-turnover and the ability to jump between workplaces, making it difficult for unions to organize. However if we want a healthy and sustainable labour movement we must find new ways to connect with the many young people who work in this sector.

Unions are realizing that they must organize these workers; it is critical for the viability of unions, but also for the workers. Despite the reality that Monday to Friday 9-5 jobs are a distant memory, unions can still achieve better scheduling provisions, fair wage increases, respect and dignity, benefits, and the right for workers to have a democratic, participatory role in their workplaces. Youth want to organize, and the unions want to organize them, but the labour relations framework doesn’t allow for this to happen effectively with the changes brought on through increases in retail/service jobs.

In today’s society young people want to take collective action against all kinds of injustice but are often doing this in non-traditional ways that are grassroots and association based; such as community coalitions, worker cooperatives, and employee associations, rather than through formalized structures such as unions. The problem is that under the current labour relations framework, these grassroots and association based structures don’t have any legal rights in terms of the employment relationship. Under these systems employees cannot formally negotiate collective agreements, and they can’t access grievance and arbitration procedures. Therefore unionization is still the best option for achieving workplace rights.

While unions want to have more inclusivity and broader representation they haven’t been able to work out some of the internal barriers that allow for this to occur. Their often hierarchal structures don’t always reflect the diversity of the labour market today. This allows for things to remain status quo, and active young people who would like to give voice to change aren’t always given the opportunity.

Unions must recognize that in order to work they must allow youth to take on participatory roles in all aspects of the union – organizing drives, negotiations, advisory and executive boards, and even take on staff positions. Unions must begin to reflect the workforce they’re looking to organize. There are some unions doing this, and it’s creating positive changes. Yet the biggest change that needs to occur is that young people and unions must come together to find ways for a new organizing model that is successful; perhaps the Wagner model isn’t it.

The challenge is great. The legislative changes required to give the labour movement the tools it needs to organize increasing numbers of precarious youth will only come about with a substantial sea change in our political landscape. Before this will happen, more youth must become engaged in politics and in the labour movement, and labour must increasingly reach out to youth.

Gabriel Bako is major in the Labour Studies Department at the University of Manitoba and a member of  UFCW 832.

Supreme Court hearing arguments on Saskatchewan labour laws

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Essential services legislation, changes to Trade Union Act in dispute

CBC News Posted: May 16, 2014

Labour groups squared off against the Saskatchewan government and business at the Supreme Court of Canada today in a dispute over changes to Saskatchewan’s labour laws proposed in 2008.

The Saskatchewan Federation of Labour says Bill 5, Saskatchewan’s essential services law, and Bill 6, which involves changes to the former Trade Union Act, are in violation of the Charter of Rights and Freedoms.

The essential services law restricts which public sector workers can walk off the job during a strike.

The Saskatchewan government says it’s similar to laws in effect in other provinces and will be used to ensure public safety during labour disruptions. However, unions say the law makes it possible to declare so many employees “essential” that it undercuts their ability to bargain collectively.

Unions also say the Trade Union Act changes make it tougher to form unions in the first place, by raising the threshold of voting workers required to get a certification vote and by eliminating automatic certification in cases where 50 per cent of workers sign union cards in favour of secret ballot votes in all cases where the threshold is met.

The province says the changes make the laws more democratic and ensure public safety.

The unions had a partial victory at the Court of Queen’s Bench level when a judge ruled in their favour on essential services, but the Appeal Court of Saskatchewan reversed that and dismissed both their cases.

The Supreme Court of Canada is expected to hear arguments for and against why the right to strike should be enshrined as a Charter-protected right. 

In addition to the Saskatchewan participants in the case, labour groups, provincial governments and businesses from across Canada are intervening in the challenge.