I love it when people ask me this question.
It comes up in a couple of different ways.
- The employer is expanding their US style background checks to other parts of the world. When they introduce the new screening program, someone (not uncommonly in France but certainly in other countries too) pipes up to say that it’s illegal to do background checks in their country.
- A specific background check is ordered and someone states it is illegal to process that search.
Since the answer to these two questions can a bit lengthy we’ll cover them in two different blog posts.
Let’s take apart the first situation. Many employers around the world, especially large companies, will have their Human Resources staff conduct some type of double checking on a job candidate’s statements. It may involve calling the former employer, verifying the diploma or training, checking on a professional license, contacting a personal reference, or validating the candidate’s right to work. They may even check a person’s social media or internet mentions. I have yet to come across a country where this type of checking is not legal. The country may exist; I just haven’t found it yet. North Korea perhaps? Yes, there can be restrictions on certain questions asked. Yes, there may be cultural differences, such as the use of Work or Labour Books instead of employment verifications. Yes, you must conduct this research in line with the country’s privacy, labor, and other laws. Yes, I am aware that some countries restrict or prohibit the use of social media for employment screening. Outside of those nuances, verifications of some sort are conducted around the world. Employers rarely think of an in-house conducted verification as a background check but it is a background check. It’s just done in-house rather than outsourced. It is simply not true that background checks of all types are prohibited in a country.
What may be happening is the individual is confusing criminal record checks with the general term of “background checks”. In many countries there are restrictions on using a person’s criminal history for employment decision making. The restrictions may be an out and out ban on the use of any criminal history, at any time, for any position (very rare). Or the restriction may be criminal record checks or a certain type of criminal record check, is only allowed for certain positions. In this example, the types of positions allowing a criminal record check may be extremely small; possibly only for those involved in vulnerable care or certain security positions. Each country is different. Layered on top of this complexity is the fact that the position and the candidate may not be located in-country. They may be in another country where a criminal record check is common or even expected, such as the United States. The in-country restrictions may not apply. (Notice I said “may”, as that is a determination that should be made with legal advice.)
Another area of confusion may be around the difference between a background check and a background investigation. Some people may think the background check being referred to is an investigation, conducted without the consent of the individual, and/or where new information is uncovered through developed leads. They may not realize the background check is conducted with the express consent of the subject and is only verifying information provided by the subject.
When confronted with the first situation I find it helpful to confirm what types of checks the employer is conducting themselves and to point out that these are background checks. Then get into a discussion as to what their concept of a “background check” is. If the concern is on certain types of checks, such as criminal or credit records, realize those may be very restricted for many or all positions in a country. Be clear that the employer needs to determine what specific types of background checks are appropriate for each position in each country. The background screener offers the catalog of available searches but not all of the searches are appropriate for use in each client’s situation. This is no different than background screening in the US. Not all positions are eligible for a credit report in all states. It is also helpful to discuss the need for providing a notice to the candidate explaining the processing of their data. Be clear that the type of background check being conducted is not an investigation but rather a confirmation of information provided to the employer.
Tune in to the next post for the answer to the second part of this question.
| Kerstin Bagus – Director, Global Initiatives|
Kerstin Bagus supports ClearStar’s Global Screening Program as its Director of Global Initiatives. She has more than 30 years of background screening industry experience, working for a variety of firms, large and small. Kerstin is one of the few individuals in the industry who is privacy-certified through the International Association of Privacy Professionals (IAPP) for Canada, the EU, and the U.S.
Kerstin is a passionate participant in the National Association of Professional Background Screeners (NAPBS) and is a current member of the Board, in addition to participating on several committees. She also participates on IFDAT’s Legal Committee, with a primary focus on global data privacy.
At ClearStar, we are committed to your success. An important part of your employment screening program involves compliance with various laws and regulations, which is why we are providing information regarding screening requirements in certain countries, region, etc. While we are happy to provide you with this information, it is your responsibility to comply with applicable laws and to understand how such information pertains to your employment screening program. The foregoing information is not offered as legal advice but is instead offered for informational purposes. ClearStar is not a law firm and does not offer legal advice and this communication does not form an attorney client relationship. The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. ClearStar makes no assurances regarding the accuracy, completeness, or utility of the information contained in this publication. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly. ClearStar expressly disclaim any warranties or responsibility or damages associated with or arising out of the information provided herein.