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Employees with a Criminal Record

Jack Lloyd joins us again to answer a few questions about what you, as a retailer, need to know about hiring an employee who may have had a run in with the law.

Q: Am I allowed to hire an employee with a criminal record?

A: The short answer is yes.
As long as you have requested a recent criminal background check and put those results on file, you are entitled to employ anyone who you wish to employ, at least in Ontario. In some provinces, employees also have to complete a board approved training program prior to beginning to work for your store. There are deep social and ethical issues arising around those affected by the stigma associated with a criminal record. It is commendable for operators to employ and support those affected by the criminal law.

Editor’s Note: Each provincial regulator has its own regulations regarding employees with criminal records. Make sure you’re up to date on your province-specific regulations.

Q: What due diligence do I need to do?

A: Due diligence is an ongoing requirement in any business, and especially in a provincially regulated business operating pursuant to licenses and authorizations issued by a regulating body. The regulator’s guidelines should provide the appropriate framework to guide an operator in being duly diligent.

Generally, as far as employees are concerned, ensuring that you have a recent criminal background check for employees, and checking them yearly, is a sensible approach. Operators must balance employee privacy against their obligations to the regulator to operate their stores safely and with honesty and integrity.

For example, if an employee has a lengthy criminal record involving thefts from employers, an employer would be wise to speak with the potential employee about the record directly and document that interaction. If the employee had a problem which caused them to behave in that way in the past, but has worked past it, then the employer should take steps to support the employee.

The employer should also  ensure that the store is in compliance with provincial guidelines, specifically ensuring that measures are in place to reduce the risk that the store’s cannabis is not redirected to the illegal market or illegal activities. Similarly, if an employee is charged with illegally diverting cannabis to the illicit market, an employer would need to be aware of this as it could have an effect on the operator’s license. The operator must have a policy in place to ensure that illegal activities are not taking place.

Q: How can I support my employees with criminal records?

A: The best way an operator can support an employee with a criminal record is to provide them with safe employment and to create a store policy that supports them and allows them room to grow while continuing to operate their business with honesty and integrity.

The AGCO regulates whether the employee can become a manager eventually, but the store’s policies around employment govern the individual’s day-to-day working life. The best way to support the employee is to run a compliant shop and to ensure that the employee’s workplace helps and encourages them to succeed.

Jack Lloyd is a lawyer in Toronto, Ontario specializing in cannabis and psychedelics regulation. He practices with Cannabis and Psychedelics Law Group LLP in Toronto. @JackLloydLawyer

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