This is the second part to the customer question about offering searches that may be considered “illegal”.
The question 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.
We covered the first situation in the previous blog post.
Now let’s answer the second question. This one can be a bit more difficult to explain. There can be several explanations for what is going on here.
As explained in the previous post, some types of background checks, notably in the area of criminal history checks, may be only available for specific positions. This list of positions can be very limited. Ireland provides a great example. The source of the criminal record is a Certificate from An Garda Síochána, the Irish police force. Very limited roles are eligible for the issuance of a Certificate. They tend to be in positions involving the care of the vulnerable, State employees, and employees covered by the Private Security Services Act 2004. (See the Central Vetting Unit website, http://www.garda.ie/Controller.aspx?Page=10954&Lang=1 and the Data Protection Commissioner site, (http://www.dataprotection.ie/viewdoc.asp?m=m&fn=/documents/guidance/EmployeeVettingGuidance.htm, for more information.) It is probable that most employers encountered by background screeners are not hiring individuals who are eligible for a Garda check. But that does not mean that the criminal record check in Ireland is totally illegal. Many background screeners offer an Ireland criminal record check in their catalog simply because they have customers who are eligible for the search. As indicated above, it is the employer who must understand their local laws to determine what is and is not allowable. In the case of a Garda check, the Central Vetting Unit will also reject applications for positions not eligible for the search. Not all authorities will screen out invalid requests.
A second explanation for the “search is not legal” statement is that the search may not be allowable for hiring an individual resident in-country for a position in the country but may be available for use outside of the country. In our global work environment, it is not uncommon to screen candidates for their history while they were resident in another country. Background screeners may include such searches in their catalog because they have customers hiring across borders. This often occurs with US employers who are screening individual’s history outside of the US and is also very common in the global financial professions where employers may have a Fit and Proper requirement to check for a history of fraud.
Another reason why searches may be considered allowable by one person and not by another is that this decision can come down to an interpretation. In many countries there is no hard and fast set of rules on what can and cannot be conducted for employment background screening. The employer may have come to one determination and the background screener may have a different opinion. This type of discrepancy works both ways. Sometimes it is the employer who feels a search is allowable and the screener feels it is not and does not offer it in their catalog.
Lastly, it is important to research any statement that a specific background search is not allowable. Things change, sometimes very quickly. As much as we try to keep on top of 240+ countries and multiple smaller jurisdictions, a change or a change in interpretation, in what can and cannot be done can slip by even the most diligent screening company.
Sometimes the change in what is or is not acceptable comes in the form of a ruling. We saw that several years ago with the use of credit checks in France. On other occasions, a guidance document may trigger a change in what is considered allowable. The recent guidance from the Hungarian Data Protection Authority on the use of background checks for employment screening is such an example. Since everyone does not slavishly follow the Hungarian DPA’s announcements, this guidance could easily have been overlooked. (If you are an NAPBS member and read the Thursday Letter, you would have found it listed in the September 15th posting.) That is why it is important to understand what makes an individual say a certain search is not allowable, and then to research the claim.
I hope you are enjoying the information presented in this blog. If you have any suggestions for topics, for the blog or for our ongoing webinars, the ClearStar Academy or the NAPBS GAC Global FAQ series, please contact me. I’d love to hear from you.
 DPA Guidance on Employment Screening: http://naih.hu/files/Adatved_allasfoglalas_Munkaltatoi-hattervizsgalat.pdf
Summaries from two law firms in English:
- Baker McKenzie: http://globalcompliancenews.com/hungarian-dpa-guidance-employment-background-checks-20160901/
- CMS Law: http://www.cms-lawnow.com/ealerts/2016/09/hungary-new-privacy-guidance-on-employers-use-of-background-checks?_ga=1.16849146.2131956130.1471894256
| 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.