Date: Thursday, Apr. 19 2012
Author: Daniel A. Lublin
Publication: The Globe & Mail
The Question:
If I’ve filed for bankruptcy, do I have to disclose this to a prospective employer? Could they legally do a search that would let them find that out? Does this limit my career choices? Will I be unable to get a job where I handle money (banking, real estate)? How might this fact limit me in my job search? Is there anything I can do to mitigate this fact?
The Answer:
Your question is part of a larger set of common concerns regarding what an employer is and is not allowed to ask during the interview process.
With respect to your bankruptcy, this should not affect your employment, subject to a few exceptions regarding the type of work you are applying for. If you are an undischarged bankrupt, you may have a difficult time getting bonded and certain regulatory bodies and statutes will prevent you from holding specific positions, such as being a director of a credit union, co-op, or condo corporation.
The good news is that you are not required to proactively disclose your bankruptcy status. The bad news is that a potential employer could ask you to provide a credit check, which would allow them to see your credit history, last employer, previous employers, and how you tend to borrow money and pay off debt. Credit checks are more common in finance and money handling roles, especially where you would be responsible for handling other people’s money or large amounts of money.
If you have concerns about releasing your entire credit history to a prospective employer, you should be able to limit what the employer sees by either providing your own copy, or consenting to provide only part of the requested information.
Another workplace law concern in the news is with respect to social media information and what an employer is allowed to ask, access and see.
There is no specific rule or law prohibiting whether an employer can review a job candidate’s social networking profiles as part of the interview process and they often do. Employers can make hiring or even firing decisions on the basis of whatever information they find on those profiles and websites, subject only to human rights prohibitions, such as age, race, sexual orientation or religious beliefs. However, proving that you were not offered the job on the basis of something discriminatory that is found in a social media profile is one of the most difficult tasks in all of workplace law. This is because all an employer must show is that they decided to select another candidate because he or she was more qualified, a better fit or because your social media profile made you seem like a less desirable candidate for any other non-discriminatory reason.
What about police checks, which include criminal record and police record searches? Most jobs do not require police checks. However, teachers, social workers, day-care workers, coaches, personal support workers and occasionally volunteers, will be asked to provide one.
If you are asked to participate in a police check, keep in mind that it should be reasonably linked to the requirements of the position and not just a fishing expedition. Extensive records checks are considered an unnecessary invasion of personal privacy and raise serious issues regarding discrimination based on a pardoned offence. Even if warranted, the police check should be limited to protect your privacy and should disclose no more of the police record or criminal record than is necessary to demonstrate the reasonable requirements of the position. While you can refuse the request, you could also choose to limit the available results by obtaining the background check yourself and giving only relevant information to the potential employer. Keep in mind though, that employers can decline to hire candidates who refuse to complete the police check, subject only to a few exceptions.
In general, interview questions should focus on your ability to perform the job and not involve questions totally unrelated to job performance. Where you believe your personal privacy or human rights have not been properly respected, you can make a complaint to the provincial or federal privacy commissioner’s office or provincial or federal human rights tribunals.