Back to School and Back to Work: Fall 2018 Legal Update for Employers

Summer 2018 is coming to an end and employers are getting ready for Fall.  It’s an appropriate time to catch up on what has been happening in the employment law world.  Below are two developments that arose over the summer and will impact Ontario employers as they make policy changes before year-end.

 New Limits to Criminal Background Checks

 It is common for employers and other agencies to conduct background checks as part of the hiring and review process, including criminal record checks. However, the current process for criminal record checks can yield information that goes well beyond an individual’s conviction history, including details about mental health matters and unproven criminal allegations.  Such inappropriate disclosure could give rise to privacy and personal health concerns, discrimination and defamation, and may cost a job opportunity.  Bill 113, the Police Record Checks Reform Act (the “Act”), comes into force on November 1, 2018.  It aims to remedy these concerns.

The Act provides a framework and province-wide standards for how police record checks are requested and conducted, including rules for disclosure and consent. Specifically, no police record check can be conducted or disclosed without the consent of the individual who is the subject of the request (with some limited exceptions). The consent must be in writing, and it must indicate what type of police record check is to be conducted.

The Act establishes three types of police record checks:

  1. Criminal record checkthe most basic form of background checks
  2. Criminal record and judicial matters checkan intermediate level check
  3. Vulnerable sector check allows for more extensive disclosure

Under each category, police are only authorized to disclose the information that is set out in the Act – see this chart for a list of the information that can be disclosed under each category.

Moreover, the Act outlines a process for reconsideration.  If inappropriate non-conviction information is included in a record, an individual will have the option to request that a police record check provider reconsider the disclosure of said information. As a result, employers should note that there may be delays in obtaining information relating to the check, which were not previously part of the recruitment process.

 Bill 148 – Will it be Repealed?

In June 2017, the then-Liberal government in Ontario introduced Bill 148, the Fair Jobs, Better Workplaces Act.  Bill 148 was passed in late 2017 and introduced a number of changes to Ontario’s employment laws.  While many employers and industry groups opposed the amendments to the Employment Standards Act, 2000 arising from Bill 148, the bulk of the changes came into force on January 1, 2018.  There are further changes that are set to take effect in 2019, including a further increase to the minimum wage (from $14 to $15/hour) and changes to pay for on-call hours.

In June 2018, the Liberal government was ousted by the PCs, and Doug Ford was elected premier.  Premier Ford stated during the campaign that he would freeze the minimum wage at $14/hour.  Although he has been clear that Ontario is “open for business” and has cancelled a number of other Liberal initiatives, Premier Ford has not announced any changes relating to Bill 148.

On August 30, 2018, the Ontario Chamber of Commerce (“OCC”) called on the Provincial Government to immediately repeal Bill 148.  The OCC stated that “testimonials from the Ontario business community showcase a common theme – the labour reforms established by the previous government were too much, too fast and have significantly limited their ability to maintain or grow the workforce they need to be competitive.”

While it is unclear what, if any response there will be from the provincial government regarding this call to action from the OCC, we will be keeping a close eye on any Bill 148 announcements this Fall and will keep our readership apprised.


 

Patrizia Piccolo, Partner & Co-Founder