3 legal traps for NZ employers dealing with criminal record checks

When it comes to candidate criminal record checks, you're dealing with the ultimate in sensitive personal data, so your recruitment process has to be squeaky clean. Here are 3 areas to watch out for.

1. If you're hiring people conditionally, keep all of your paperwork straight - not just your application form

In 2013, Fonterra was forced to pay $18,000 compensation to Jason Richardson, a driver who was sacked after he failed to disclose his traffic and criminal convictions on Fonterra's job application form.

Fonterra's application form at the time was crystal clear regarding convictions.

It asked applicants to disclose any criminal or driving convictions. It also dealt with cases where background check results were not confirmed until after employment had started, by stating that misleading or false information could be grounds for dismissal without notice.

However when applying, Richardson mistakenly assumed that his previous convictions fell under the Clean Slate Act, so he did not declare them. Fonterra proceeded to hire Richardson.

When Fonterra later received Richardson's criminal convictions record it showed eight convictions between 1997 and 2004, for which Richardson had variously been fined, put on community service, disqualified and imprisoned. Fonterra then dismissed Richardson.

Richardson took his case to the Employment Relations Authority.

After study, the ERA ruled the dismissal was unjustified, and Fonterra was ordered to pay Richardson about $13,150 in lost wages, along with $5250 compensation for hurt and humiliation.

What went wrong?

In this case, Fonterra had ticked the right boxes in setting up their application form, but had tripped up by failing to include the question about convictions in the subsequent forms - in this case the Collective Employment Agreement.

The Collective Agreement in this case contained a completeness clause. These clauses commonly state that the contractual arrangement records the entire agreement between the parties, and that no prior arrangement or agreement has any effect.

This completeness clause had the unfortunate (for Fonterra) effect of negating the question about criminal conviction on the application form.

The warning for employers here is simply to make sure that if you hire people conditionally, then make sure that all employment forms and documents reflect that - not just the application form.

2. Don't allow interviewers to ask ad-hoc questions of candidates about their criminal record

Regardless of your overall interview process, you should always use set, pre-prepared questions that don't breach the Clean Slate or Privacy Acts.

In New Zealand, the Criminal Records (Clean Slate) Act 2004 allows people with less serious offenses and who have not re-offended within seven years to put the past behind them.

The Act has been a success, with hundreds of thousands of New Zealanders having had convictions concealed under the Clean Slate Act, and going on to seek employment with clean criminal records.

However its possible for employers to unwittingly fall foul of the Act, especially when interviewers stray from the script. Essentially, you can't ask any questions or seek any information that attempt to work around the protections of the Act.

For example, here are some unacceptable questions:
  • Have you ever been given diversion by the Police?
  • Have you ever been in any trouble with the Police?
  • Can you provide us a with a copy of your full criminal record? 
Acceptable questions:
  • Do you have a criminal record?
  • Are you currently facing criminal charges?
By unacceptable, we mean that either asking these questions breaches the law, or that you have no recourse if the candidate lies in their answer. For example, asking about diversion is on the legal fringes, but regardless of how the candidate answers, you have no way to verify their answer as a candidate's criminal record won't include details of diversion.

3. Don't ask candidates for access to their social networks

To most New Zealanders, asking a candidate to hand over their Facebook password would be unthinkable, but its worth adding this to our list nonetheless.

Specifically, employers should never ask job applicants to reveal their Facebook (or any other social media) usernames and passwords to allow the prospective employer, especially to check their backgrounds for criminal activity.

Doing so opens the employer up to potential human rights and/or privacy complaints, especially if they don’t hire the individual concerned. The practice is likely to "intrude to an unreasonable extent" upon the individual's privacy. It may also reveal information about their religious belief, sexual orientation, race and other prohibited grounds of discrimination. As an obvious extension of this, never ask applicants to socially "befriend" anyone involved in interviewing or HR.

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