“Do Not Hire” Lists: Beware of Canadian Privacy and Disclosure Implications

Employees cease working for organizations for a variety of reasons, and often they want to have the option of returning or having their contract renewed. Conversely, many employers prefer to close the book on a particular employee, and will not even consider hiring former employees. To avoid unexpected surprises, some employers will have a “Do Not Hire” flag or other form of so-called blacklist associated with certain names.

A recent decision from Nunavut in Canada’s north highlights the perils associated with any such lists, which may be subject to scrutiny in legal proceedings.

In its ruling in Department of Human Resources (Re), 2024 NUIPC 21, the Nunavut Information and Privacy Commissioner considered an application filed by a former employee of the Department of Health, who sought further disclosure of departmental Human Resources records. The records were requested in support of a claim that the employer had blacklisted the Applicant.

The employer had provided more than 200 pages of redacted records to the Applicant, but did not advise in its response whether or not it maintained a “Do Not Hire” or “Hire With Caution” list, and whether or not the Applicant’s name was on those lists.

The Commissioner’s ruling reviewed relevant legal principles, and ordered the Department to disclose whether or not any such lists were maintained, and if so whether the Applicant was on any such blacklist. This finding was based on the requirement that the employer was a public body which was required by applicable law to conduct a diligent search of its HR records in response to the specific request in issue. Further, any lists about former employees or prohibited candidates were held to be relevant records, and any such documents which referred to the Applicant were subject to disclosure.

The Applicant, who had previously been employed on a series of contracts and expected to be re-hired, presented some evidence to the Commissioner that he may have been blacklisted. While this did not necessarily establish that this had in fact occurred, it provided a sufficient basis to order further efforts by the employer to respond to the Applicant. Any such response would need to include, at a minimum, an explanation about whether any such “no fly zone” lists existed, and whether or not the Applicant was on any such list.

In its reasons, the Commissioner made it clear that it is not improper for an employer to keep a “Do Not Hire” or “Hire With Caution” list. However, if any such lists exist, they constitute records which may be subject to disclosure under applicable law.

Takeaway for Employers

This decision reinforces the importance of carefully reviewing how an organization maintains its HR records, including those relating to former employees. Even if there are proper business or legal reasons to refuse to consider a particular applicant, the practices of the employer may be scrutinized. While this specific outcome arose in the context of access to information rules for a public body, there may be similar requirements arising in litigation or tribunal proceedings. Indeed, if a party can establish a reasonable basis to inquire into the reasons for them not being hired or retained, then the employer is likely going to be required to both explain its recruiting and retention processes, and to disclose relevant records. So even though it is not improper for an employer to maintain a “Do Not Hire” list, there still needs to be careful planning and diligent recordkeeping practices associated with this approach.