Mexico - Country Background Screening Essentials

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

Identity Validation

• 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

Academic Verification

Employment History

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

Reference Interview

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.

Identity Validation

• 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.

Copyright © 2011 Aletheia Consulting Group

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