Answer – For many of the same reasons other companies do not conduct such checks, and because it is not the most effective thing that employers can do to protect their employees from each other.

As the topic of workplace sexual harassment and assault has grown into a more prominent and public issue for all employers, many people have asked why criminal record checks are not completed for potential employees. When it comes to the tree planting industry there are many reasons for why this step is not taken, despite workers generally being required to live and work in close proximity to each other in isolated locations.

To cut straight to the point, the most effective steps any employer can take towards preventing harassment or assault is to have clear and strong policies that address such behavior, provide high-quality training and education to employees on the topic, and maintain an open and trustworthy company culture where disclosures and reports are welcomed and seen as a safe way to gain protection and support from the employer.

A criminal record check may reveal crimes committed by a person in the past, but with sexual harassment and assault being among the most under-reported crimes, such a check is more likely to provide a false sense of protection, letting offenders who were never caught slip through. Moreover, most new applicants to tree planting jobs are young and unlikely to have acquired a criminal record at this point in their lives, and instead require proper education and training to ensure they understand appropriate boundaries of behavior.

Among experienced workers, proper reference checks can help identify workers who have been caught and punished by their former employer. Even though a former employer may not be able to reveal any details about such incidents without violating privacy rules, the former employer can decline to provide a reference or indicate they would not rehire the individual.

Some parties have suggested the creation of a shared “do-not-hire list” may help prevent known offenders from recirculating through the industry. However, this would contravene legislation that protects personal privacy, and workers are unlikely to be supportive of employers sharing secret lists that could potentially be used to cover other things such as production or asserting one’s rights. It is likely that some employers do share information with trusted colleagues to prevent hiring of known offenders and protect other workers, but this is never openly acknowledged or supported by the law.

One of the key considerations in the use (or non-use) of criminal record checks during hiring is the fact that criminal history is a protected ground of discrimination under human rights law in BC and cannot be used in the screening of applicants unless the employer can establish a clear connection between the nature of the offence being searched and the nature of the work being performed.

For example, a bank may lawfully choose not to hire anyone with convictions for fraud or bank-robbery. However, workers are required to interact with other people in nearly every industry, and a conviction for an interpersonal or even violent crime may not be viewed by the Human Rights Tribunal as being justification for denying a person employment if other steps can be taken such as assigning them to motel-based work instead of camps.

A related problem is that criminal record checks in Canada cannot be used to search for only specific offences, and an employer may be informed of other irrelevant offences that have no bearing on the job the person is seeking, resulting in them developing bias against the applicant. For example, a worker with a criminal record for drug possession or vandalism may now become subject to unintentional discrimination in hiring, with their entire history laid bare for the employer to review.

A criminal record check can be an important tool for some jobs, including those dealing with care of children or other vulnerable parties, and jobs with high levels of responsibility or control over others such as policing. However, they are not generally used in manual labor industries and offer only limited assistance in preventing abusive behavior in comparison to having robust and firmly enforced policies aimed at educating and protecting workers within the walls of the workplace.