Companies are realizing that implementing a global HR infrastructure with global talent management capabilities can help them reduce costs, improve operational efficiency, and leverage their talent more effectively on a global basis. Aletheia Consulting Group suggests multinational HR professionals consider the following global background check best practice guidance when initiating international background check programs.
Check to make sure your organization maintains a Global Screening Policy – Growth in legal scrutiny and regulatory control through much of the international community as it relates to personal privacy has put the onus on employers to ensure best practice in international employment screening. That means compliant, consistent, transparent, and effective screening procedures – the natural conclusion to the recruitment and selection process.
Is Safe Harbor Certification Necessary? –Consider (with legal counsel) whether Safe Harbor filing is appropriate. If it is selected, determine who will be responsible for overseeing Safe Harbor filings and compliance responsibilities. Consider what other data privacy filings may also be appropriate if screening may be conducted outside the European Union as the Safe Harbor provisions only apply to the EU and not the rest of the world.
Establish a Screening Policy that addresses the Recruitment and Selection of applicants based on country specific requirements – It is vitally important to establish a global background screening policy followed by country centric policies in addition to your existing U.S. pre-employment screening policy. Country specific guidelines should be established in order to address local cultures, customs, and legal requirements. Ensure that your staff is fully trained with regard to their responsibilities relating to personal privacy guidelines and make sure it’s documented. This will not only assure legal compliance, but also consistency in the background checks conducted on a country basis and provide for sound employment decisions wherever the organization may be hiring from.
Assess Human Resource Personal Data – Perform an audit of databases containing HR Data (personnel data). Gather company filings/policies/guidelines regarding personal privacy and security of HR data. Review notices to employees and their representatives. Review how employee access is managed. Review employee complaint processes. Gather any internal controls relating to security maintenance and retention of personal data.
Review existing Employment Applications in relation to applicants for overseas candidates – Ensure that employment application forms do not ask for excessive personal data in relation to local privacy laws.
Require Appropriate Forms of Identification – Each country may require varying forms of identification as well as supporting documentation in order to perform a legitimate validation of identity. Multiple forms of color photo identification may be needed in order to validate the identity of an applicant such as a copy of the applicant’s passport which includes the address page as well as a copy of a utility bill indicating that an applicant actually resided at a particular address in a specific country.
Don’t Assume Anything - Many companies assume that if a candidate has a work visa, that they are clear of any wrong-doing in their home of record country. This is a false sense of security. People can hide the fact that they committed crimes in the past and easily falsify work and educational experience. Performing a complete background check on each candidate provides your organization with the necessary level of due diligence and the confidence that they will have hired a qualified, honest candidate.
Verify Facts on the Resume – Many times, a candidate will state they attended a school or worked for a large corporation in another country because they believe that no one will be able to verify the information. Make sure HR personnel obtain some form of written verification from an applicant for each credential claimed.
International Criminal Records - Prior to requesting a criminal record search from your international provider make sure criminal data from the country is a matter of public information in the host country. Requiring a criminal record on an applicant in a country where criminal records are not considered a matter of public record, or is acquired in contravention with local regulations governing access to data, human rights, or employment legislation could be considered a violation of local privacy law and may be subject to possible criminal prosecution by the U.S. Federal Trade Commission (FTC), U.S. Department of Justice if a U.S. corporation, as well as by host country criminal justice systems.
Background Check Supplier Management
Use a Competent International Background Check Service Provider – More and more U.S. screening companies offer international background check services however it is not only important to make sure that the background check provider you are using is reliable, but it is absolutely essential to confirm the fact that the provider has more than a passing knowledge of the global background check market to include the local laws governing background screening in the countries they intend to provide support to your organization. Make sure the supplier only provides information that is legally permissible to access and can be used for employment purposes from the host country.
Make Sure Your Supplier Maintains Adequate Security of Personal Data – Ensure that your contract with your screening provider is in writing and makes reference to their adherence to local legal provisions as well as security of personal data.
Errors and Omission Coverage – Ensure that the screening provider carries sufficient professional indemnity to cover international data not just data collected and processed within the United States. Screening providers not thoroughly familiar with the necessary insurance coverage required for transborder data may neglect to cover data collected, transferred, and processed internationally.
Ensure the screening provider provides sufficient documentation identifying your organization as an additional insured on their policy as well as require certificate holder status information in your agreement with the screening provider.
Establish Personal Data Retention based on Country business rules – Make sure that both you and your supplier only keep employment application forms, data, and other materials collected during the vetting process (including databases) containing the applicant’s personal information based on country specific data retention periods. Ensure that the supplier does not use the information you give them on a separate inquiry i.e. shared access archives or previously performed background check services.
A recent topic posted by one of our readers from our LinkedIn Group “International Background Screening Forum” regarding South African Criminal Records asked “Anyone at a company who has conducted background checks from South Africa and used fingerprinting to check criminal history? Why or why not did you use fingerprints? How was your experience?”
We offered the following insight.
Great question! The important thing to keep in mind while pondering responses to this question particularly from places such as South Africa are, (1) what are you the employer and or candidate getting in return from the screening provider for this search? (2) Is it a narrative result indicating record or no record or (3) are you receiving what is called a “Police Clearance Certificate” that is issued by the South African Police Services (SAPS)? If the answer is number 3 then the following should apply:
Criminal records from South Africa should entail a search of the SA Criminal Records Centre (Kriminele Rekord Sentrum). The Criminal Records Centre is operated by the South African Police Services (SAPS).
There are 91 branches of the CRC across South Africa. The Criminal Records Centre currently holds information relating to an estimated 6.5 million individuals. The Criminal Records Centre maintains records of criminal convictions for an indefinite period. If all your getting in return as a result is a narrative result then chances are you are only getting a local individual agency check.
In 2002, the Automatic Fingerprint Identification System (AFIS) was implemented by the CRC in South Africa. The AFIS (similar to the U.S. version) is a national, computerized system maintained and used by the police. It contains comprehensive and up-to-date fingerprint data, including historical records. All searches in connection with criminal records disclosure are conducted using fingerprint analysis at the CRC in Pretoria.
A prospective US employer can submit an application to the CRC only via an accredited pre-employment screening agent. Individuals are provided with a Police Clearance Certificate if they have no offences registered against their name. The search is national scope.
The application process in South Africa
The South African Police Service does not produce an official application form for criminal records disclosure. SAP Police Clearance Certification applications can be submitted in the form of a letter provided that all the information outlined below is provided:
- Full name of applicant
- Maiden name (if applicable). The preferred surname in which the certificate should be issued must be specified
- Other names
- Date of birth
- Place of birth
- South African ID number
- Last residential address in South Africa (including telephone number)
- Last business/employers in South Africa (including telephone number and address)
- Mailing address in country of application (including telephone number)
- E-mail address
- Full set of fingerprints
A criminal records check of the SAPS Criminal Records Centre generally involves the following steps:
- The applicant sends a completed application form to the Criminal Records Centre by post or in person.
- A search is made against the central index of names of fingerprints on Automatic Fingerprint Identification System for potential matches against the subject.
- A Police Clearance Certificate is prepared. The certificate is then issued irrespective of whether or not disclosable information is found. The certificate is produced in English.
- The Police Clearance Certificate is then sent by post to the address provided. It can also be collected by courier depending on the applicant’s preference.
Conclusion: Although our reader didn’t indicate if they were frustrated with the prospect of having to require their candidate to produce fingerprints as part of the criminal record process, we understand that many MNC HR professionals and candidates may feel at times frustrated with cumbersome requirements needed to undertake international criminal record checks it’s also critically important to have a close understanding of how local agencies maintain such data and prescribe proper access. Alternatively organizations should establish a relationship with a subject matter specialist in these areas or a screening provider who can provide such insight.
Aletheia Consulting Group’s managing principal Terry Corley to participate in workshop related to Issues surrounding law enforcement / private sector partnerships in background screening for employment purposes at the 29th Cambridge International Symposium on Economic Crime September 7, 2011.
The annual Cambridge Symposium is a truly unique event which over the years has made an unrivalled contribution to understanding the real issues involved in preventing and controlling economically motivated serious crime. As a respected and trusted international forum and network it has also made an impressive and meaningful contribution to fostering international co-operation and promoting mutual understanding and goodwill.
The Twenty–Ninth symposium will focus primarily on the responsibility of those who look after other people’s wealth, or who advise or oversee those who do, to identify and manage risk. In particular, we will concentrate on risks resulting from criminal and subversive activity and, perhaps perversely, those thrown up by laws and regulatory initiatives designed to attack criminal activity.
The programme is structured to provide a depth and breadth of opportunity – second to none, for those participating in the programme to become aware not only of existing, but also new threats, and how best to address them.
Those who are concerned to protect and promote the integrity and wellbeing of their national economy, institution or enterprise – or who are concerned to better understand the risks facing business today, cannot afford to miss this very special event.
By Terry Corley, Aletheia Consulting Group
Legal implications for international criminal records research are not as complex as one might imagine, however for U.S. based screeners and MNCs they do involve the intersection of U.S. and the application of local law. When addressing an organization based entirely outside of the U.S. than other considerations need to be taken in to account. However, with that said, there are essential considerations employers and screeners must be aware of; (1) how, (2) where criminal information is acquired, (3) transmitted, and (4) utilized during the recruitment and selection process by all parties concerned.
The last few weeks posts I’ve shared a sampling of Country Background Screening Essentials from Mexico to Japan. My coming posts will cover an overview of subjects such as legal implications of doing overseas criminal record checks, acquiring data based on legal status, transmitting international criminal records overseas, sources of criminal information, methods of data acquisition, commons uses of criminal records from overseas government agencies, and finally a sampling of country reports from the four corners of the globe.
I would like to hear from some of our readers which countries they’d like to learn more about. Please email your country requests to firstname.lastname@example.org.
By Terry Corley, Aletheia Consulting Group
Good Practice Guidance: Potential candidates may be required to consent to background checks in Mexico, including requests about their criminal history, consumer credit, and motor vehicle records, as a condition of employment. If consent is not provided, an employer may legally refuse to hire a potentially qualified candidate. An employer must request the background check of an applicant prior to extending an offer of employment. The applicant must then decide if they will consent to undergo the background check process. Employers must be able to demonstrate proof of consent. In order to substantiate valid consent was obtained it must include specific language indicating that the candidate agrees to the background check.
There is no one specific law governing background screening in Mexico, however various pieces of legislation do cover parts of the screening process. These areas include the following:
- Constitution of Mexico,
- Mexico Federal Freedom of Information Act (FOIA)
- Federal Law on the Protection of Personal Data in the Possession of Private Entities,
- Federal Law of Transparency and Public Access to Government Information,
- Transparency and Access to the Federal District Public Information Law
Since 2002, the Mexico Federal Freedom of Information Act (FOIA) protects personal data collected by the government, and guarantees the related treatment, including access by individuals and the possibility to replace, rectify, complete or correct such information (habeas data). The main objective of Mexico’s FOIA is to guarantee the protection of personal data and to promote a culture concerning its treatment.
Culturally it is common practice throughout Mexico for candidates to obtain and provide an employer with a copy of their Letter of No Criminal Record (“Carta de No Antecedentes Penales” also known as “Certificados de No Antecedentes Penales“) as a condition of employment.
Pending changes in law or regulation
The most recent development to the legal landscape in Mexico was this passage of the Federal Law on the Protection of Personal Data in the Possession of Private Entities July 2010.
The Federal Law on the Protection of Personal Data in the Possession of Private Entities regulations comply with the internationally recognized principles such as: lawfulness, quality, access and correction, information, security, custody and consent.
This new regulation is based upon the OECD models, the European Directive and the principles of APEC.
Violations of the new privacy regulation can carry severe civil and criminal liability
Criminal Record Governing Legislation
Criminal information maintained by Mexican courts and local Federal Public Ministry (MPF) (“Ministerio Publico Federal”) agencies (local law enforcement agencies) is not classified as public information and cannot be accessed directly by a third-party.
Federal and individual Mexican state attorney general authorities however promulgate regulations that govern access to and dissemination of Certificates of No Criminal Record (“Certificados de No Antecedentes Penales“) to data subjects throughout Mexico for immigration as well as for employment purposes from the following agencies.
- Federal Attorney General’s Office – “Procuraduría General de la Repúblíca”, or
- Attorney General of the State Justice – “Procúraduría General de Justicia de Estado”
Requests for Letters of No Criminal Record can either be submitted and retrieved from most agencies by a candidate themselves and or their designated legal representative.
As an example the Attorney General, Expert Services Division, San Luis Potosí Mexico (in Spanish) publishes instructions to the public for how they may apply for their own “Letter of No Criminal Record” (in Spanish).
Current laws and regulations related to the collection, dissemination of criminal records by the San Luis Attorney General’s Office are the following:
Organic Law of the Attorney General of the State of San Luis Potosi Article 36 Subsection XVII, 37 (POE 07/07/2009) Regulation of the Organic Law of the Attorney General of the State of San Luis Potosi Article 19 fraction X , 77 , 78, 79 and 80 (POE 12.19.2009) Finance Act for the State of San Luis Potosi Article 92 Fracc. II (POE 12/19/2009).
Permissible Screening Components
- Instituto Federal Electoral Card, or
- Mexican National Passport
Criminal Record Check
- Attorney General of the State Justice (Statewide),
- Federal Attorney General of the Republic of Mexico (Federal),
- Attorney General of the Federal District (Federal District), or
Police Clearance Authentication of Mexican Certificates of No Criminal Record
Mexican State & Federal Fugitive Search
Mexican law requires employers to respond to employment verification requests by providing an employee’s termination date, position held, and the terms and conditions of thier employment. While an employee’s consent is required, either verbal or written consent by an applicant who is the data subject of the request is considered sufficient.
Professional Credential Verification
Civil Suits & Judgments
Directorship Search (Conflict of Interest Search)
Restricted Party Search
Database search of corporate scandals, money laundering, corrupt government official database, criminal courts, law enforcement most wanted, fugitives, terrorist, insurgents lists, law enforcement derogatory news files, restricted parties (sanctions, warnings, debarred), and politically exposed persons (PEP).
Threshold for Screening Components
Consent Form – Potential candidates may be required to consent to background checks in Mexico, including requests about their criminal history, consumer credit, and motor vehicle records, as a condition of employment. If consent is not provided, an employer may legally refuse to hire a potentially qualified candidate. An employer must request the background check of an applicant prior to extending an offer of employment. The applicant must then decide if they will consent to undergo the background check process. Employers must be able to demonstrate proof of consent. In order to substantiate valid consent was obtained it must include specific language indicating that the candidate agrees to the background check.
- Instituto Federal Electoral Card or Mexico National Passport (Scanned image copy)
Criminal Forms – although individual state requirements may vary the following is intended to summarize the basic requirements:
- Special Letter of Authority (limited power of attorney) – Must include last residential complete address and dates of residence in Mexico.
- Proof of Identification – Mexican Instituto Federal Electoral Card or also known as the IFE Card (Scanned color copy) or National Passport (Scanned image copy)
- Complete set of rolled fingerprints certified by a recognized police authority
Police Clearance Authentication
Scanned image of “Mexican Letter of No Criminal Record” obtained within last 30 days
Data Retention Guidelines
Records pertaining to employee background checks are highly confidential and must be retained for a period of at least five years.
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