Legislation in the News – Bill 168, Criminal Background Checks

So, on December 9th this year Bill 168, An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters, passed Royal Assent. While there are numerous places you can get your hands directly on the most recent copy of the Bill with its many stages of changes, and while there are many places you can get your hands on a summary of the Bill – I thought I would just cover off on some highlights and share some thoughts and opinions.

The Bill, essentially, looks to attempt to make workplaces safer through a number of measures aimed at reducing violence in the workplace. It basically is to take the foundations of already existing harassment & discrimination legislation and workplace policies to a new level by incorporating new legislation and thereby having employers create new policies from an Occupational Health and Safety perspective.

This then introduces remedies to workers such as the right to refuse work where he/she feels the work is unsafe as a result of working in proximity of an individual who may be prone to violence or have displayed a violent past. Sounds reasonable, doesn’t it?

Is there room here for abuse of the right to refuse work? Probably. But, that’s just the start. The legislation lays out precautions employers must take, including the requirement to create workplace violence policies, procedures for dealing with behaviour issues as as well as investigations. It requires the posting of said policies in conspicuous places and a much higher level of diligence in monitoring the workplace for behaviour issues.

Oh, and let’s not forget the employer’s obligation to disclose information about the violent past of a worker to other workers who may have to work with or near the “violent worker”. How much should be disclosed? Good question. While the act does have specific language on this – it basically says that enough information, including personal information, should be disclosed to make the other workers aware of the risk, but not to disclose too much personal information. With 6 months to go until the Act becomes law in June of 2010, I can already hear the personal defamation lawyers salivating and licking their chops. Maybe a good time to start inserting clauses in offer letters to gain consent for disclosure of certain personal information to other employees as a condition of employment. (seriously)

While I am not against Bill 168 and its changes, I do find it very progressive and that it introduces a lot of legal grey areas that must be addressed very quickly and very thoroughly.

I am beginning to think that 2009 has been the “Year of Legislation” for HR professionals. Between Bill 139 with amendments to the ESA, Bill 168 as described above, and pending changes to the Accessibility for Ontarians with Disabilities Act – I am starting to feel more and more like a lawyer of sorts.

OK – One last honourable mention here as far as end of year legal updates goes. About 3 weeks ago, the RCMP removed the right for police departments to access the national criminal database on behalf of 3rd party vendors acting for employers to obtain criminal background checks (apparently in line with standing directives that they had been lenient on in the past, from what I understand). After much backlash, the RCMP apparently did not do a full 180 degree turn on the matter, but maybe a 30 degree  redirect. They decided to allow the checks to be done, but only for police departments to disclose a “clear” or “not clear” on the reports released to the 3rd party vendors, and hence, employers.

So, a couple of issues here. First and foremost – how are employers expected to meet obligations under Bill 168 in relation to investigation and disclosure of risks of violence by employees when access to Criminal Records has been fundamentally blocked. In trying to prevent discriminatory practices, I believe that these actions have made matters worse. While one employer may have hired someone with a theft charge but not a bad driving record, another employer may not care about the theft charge so long as the driving record is clear for a position which requires use of a company vehicle. While I am oversimplifying for demonstrative purposes here – I’m sure you get the point. Now the employers will only get “unclear” and both may decide not to hire, as they do not know the full extent of the history.

An alternate solution may be to have candidates provide their own check. Ummmm, maybe not. Employers were able to obtain them in typically 3 – 5 days. The average individual has to wait about 3 – 6 weeks, pay about $30 – and then, there is not guarantee to an employer that having passed through the hands of the applicant, that the document has not been altered in any way.

These changes are not only affecting employers, but will have a negative impact on not-for-profit and volunteer organizations and their ability to effectively sreen individuals who will be working with “at risk” groups.

We’re just going to have to wait this one out. However, if you have been affected by this, I am curious to hear from you and how you have mitigated your hiring risks through other solutions. Please either comment or write me directly, as this matter is not getting anywhere near the amount of attention it should be.