COVID-19 Update: Despite court closures in many areas, Sterling is still able to complete criminal checks with minimal disruption thanks to our proprietary end-to-end automation that allows us to access court information. For additional info on how Sterling is handling the COVID-19 situation, please visit our COVID-19 page.

Cross-Border Background Screening Programs: Are You in Compliance?

August 26th, 2015 | Sterling

By Mark Sward, Director, Privacy

Do you operate a background screening program that spans both the United States and Canada? How well do you know the risks and realities on both sides of the border? For example, did you know that a major compliance risk in the United States today is based on technical non-compliance with consumer reporting laws, whereas one of the most significant risks in Canada is a complaint under privacy or human rights laws? Can you name the laws that apply to you, and the steps you need to take to mitigate compliance risks? Do you know what “ban the box” means? And do you know what differences to expect when looking at background check results in the two countries?

If any of these questions has you stumped, you could use an update on cross-border background screening programs. On September 15, my colleague Joe Rotondo and I will present an hour long webinar on these topics and more, which will be a valuable introduction to those who are new to cross-border screening and a worthwhile refresher for old pros. In the meantime, I’ll give you some things to ponder.

“Ban the box” is an American concept, but there are similar provisions in some Canadian jurisdictions as well. Basically, it means that an employer cannot ask the question on the job application as to whether an applicant has a criminal record. Essentially, the criminal record check needs to be the last step in the hiring process rather than a way to narrow down the applicant pool at the outset. In the US, these laws have been enacted at the City and State level all over the country. In Canada, while the term “ban the box” has not been used, provisions of provincial and federal human rights legislation may restrict the way you use or collect information about criminal history; some jurisdictions forbid employers from making a negative decision based on a criminal record unless the record is related to the position. While this does not explicitly say that an employer cannot ask about a criminal record at a given point in the recruiting or hiring process, it effectively bans a blanket policy of discrimination against people with a criminal history – just like “ban the box.”

Regardless of where you operate, the most important thing is to understand your obligations, understand your candidates’ rights and build a background screening program that will both protect you from the risks created by a bad hire while also protecting your applicants from unfair discrimination. This is made all the more complex by a multinational workforce. Please join us at our webinar on September 15, at 11am PT, to learn how to build an effective and compliant cross-border program.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.