Germany – Country Background Screening Essentials

Overview

The primary law governing background checks in Germany is The Federal Data Protection Act (Bundesdatenschutzgesetz (BDSG)).  As of 1 September 2009 the BDSG provides comprehensive regulation of the processing of personal data.  At the federal level, this is supported by laws such as the Telecommunications Act of 22 June 2004.  In addition, each German State has privacy legislation and data privacy commissioners to enforce State laws. On August 25, 2010, the German federal government proposed amendments to the existing law on the processing of employee data.  The draft law went before the German Parliament for a first reading on November 2010, and is now in effect.  This new law now applies to virtually all data collected and used by employers over the course of an employment relationship.  The new law also restricts background checks on individuals. A detailed explanation will be covered under Applicable Statutes.

Germany provides job placement and counseling services to applicants who must first fill out a form.  The information on the form is then entered into a computer, to be processed as part of computer-assisted job placement (“coArb).  Relevant information includes address, marital status, health status, education, occupation, previous jobs held and the results of job counseling sessions.  If necessary, applicants may undergo medical and psychological testing, conducted only with their consent.  Test results and the examiner’s original report are kept on file by the medical or psychological service.  A copy of the report is kept on file with the placement and counseling service.   The applicants’ data is checked against the information on current job openings and the best matches are selected.  The job placement officer then refers the applicant to the job opening; the employer receives a copy of the referral.

Applicable Statutes

Any collection of personal information is subject to the restrictions imposed by a number of different statutes, in particular the following:

• The Federal Data Protection Act (Bundesdatenschutzgesetz (BDSG))
• The Federal Central Criminal Register Act
• The Central Registry Act (Gesetz uber das Zentralregister und das Erziehungsregister, as amended on December 17, 2006)
• The Criminal Procedure Code (Strafprozessordnung, as amended on December 17, 2006)
• Telecommunications Act of 22 June 2004
• Section 611 et seq. of the Civil Code (Burgerliches Gesetzbuch, as amended January 1, 2002)
• The General Act of Equal Treatment (Allgemeines Gleichbehandlungsgesetz, as amended on December 12, 2006); and
• Articles 1 and 9 of the Basic Act (Grundgesetz, adopted on May 23, 1949, and amended on March 19, 2009)

Personal Data on Applicants:  (New Law) Data collection from applicants: According to Sec. 32a para. 8 of the law, any personal data shall only be collected directly from the affected employee or applicant. Any collection of data on the applicant from a third party requires prior opt-in consent. An exemption is made only for data that is publicly available so that Internet searches on the individual will generally remain permissible.

Note:  In case an employment relationship has not been founded, the data of the applicant may only be stored further if the applicant has consented.

General Limitations on Information:  A prospective employer may only ask questions relating to particularly sensitive subject matter if the information is significantly and decisively pertinent to the work.  In this context, sensitive data includes:  disabilities, health, religious or political views – as well as criminal records and financial standing.

The new law allows employees to consent to the background check; however, it is very strictly limited.

Legislation Governing Criminal Records in Germany

Federal Ministry of Justice

The Federal Central Criminal Register Act  “Bundeszentralregistergesetz” from 1971 governs the disclosure of criminal records and regulates what type of information or convictions are to be included in or removed from the Federal Central Criminal Register.

The content of the “Bundeszentralregister” is regulated by section 4 of the Federal Central Criminal Register Act. The register contains information on the following:

• Sentences imposed by German courts;
• Security and rehabilitation-related measures;
• Warnings issued pursuant to section 59 of the Criminal Code (Strafgesetz) on reservation of punishment, or
• Custodial sentences issued with reference to section 27 of the Youth Courts Act “Jugendgerichtsgesetz”

Good Practice Guidance

The primary purpose of the BDSG, is to ensure, among other things, that personal information is collected directly from an applicant or employee rather than from third parties such as third-party vendors, consumer-reporting agencies, former employers, referees, the courts, or the Internet. The BDSG permits the collection of information via third parties only where the “nature of the business purpose” necessitates the collection from third parties and there is “no overriding legitimate interest” of the individual to whom the data relates to. In other words, employers may seek information from third parties only where the particular position requires certain information to be confirmed and supplemented through background checks. Commentary suggests that background checks are permitted only where the trustworthiness of an applicant or employee is particularly relevant to the work, such as for positions in financial services institutions, for positions involving child care, or where certain qualifications are essential for an employment decision.

In addition, all inquiries should be approved via the written consent of an individual concerned, unless an employer obtains another justification. Other justifications fall outside the boundries of this article and are not applicable to employment screening.

Employers may collect the following preliminary information:

• Name
• Address
• Telephone number
• E-mail address
• Other data required to assess skills and qualification of applicant.

Any other information requires applicant’s prior, specific consent.

Sensitive Data

Sensitive data contained in background checks may only be collected with the individual’s specific consent, and the applicant must be notified of the information to be checked or supplemented as well as the references or agencies that are asked to provide the information.

In accordance with Gola/Wronka: Handbuch zum Arbeitnehmerdatenschutz, Rdn. 213, employers are prohibited from using medical information unless it is directly relevant for the position; for example, certain allergies or disabilities that may affect an applicant from performing their duties of employment.

Consent / Notice Requirements

Candidates must be provided with fair and accurate information about the information included in the report, the purpose for which the data will be used, the names of all recipients (other than data processing agents), the sources of the information, and the individual’s right to access and correct the data. Additionally, prospective applicants must be informed about the fact that service providers may collect, access, or use the information.

Access and Correction Rights

Applicants and employees may request access to the information collected and may dispute the accuracy of information contained in the report. The employer then must correct this information.

Use Restrictions

Employers should also be aware that aware that certain questions and the way in which they are asked or checks that are conducted could infringe labor law obligations or the General Act on Equal Treatment (ACG). For example, it is generally not permitted to ask applicants for information about their sexual orientation, and if the interviewer does, the applicant has the right to refuse to answer the question. Background checks may therefore not be performed in order to verify this type of information.

Even when employers are able to justify the carrying out of background checks, employers must be careful not to use background checks to discriminate. The ACG applies to the recruitment process and may be infringed by certain types of background checks or the way in which such checks are conducted. In particular, any discrimination for age, gender, religion, union membership, disabilities, and sexual preferences is strictly prohibited, and information collected on these items may not be used.

Special Note: Background checks to supplement information available from a candidate’s resume and interview are not common in Germany. There are severe restrictions on the scope of information to be obtained in order to protect an individual’s personal privacy and right of self-determination. If employers create or obtain background check reports, they should provide detailed information on the background check, and ensure an applicant’s cooperation in the process.

Good Practice on Specific Background Checks

 

Consumer Credit

Although credit data is not regarded as sensitive data per se, financial institutions in Germany are generally not permitted under the BDSG to share information on an individual’s creditworthiness or credit standing with employers or third-party vendors. In order to facilitate credit decisions by financial institutions, SCHUFA, a private organization, has been established and hosts a database to facilitate the sharing of credit data. Financial institutions associated with SCHUFA provide credit data to the system, update the data, and receive data in return. Although employers or third-party vendors are not permitted to directly access the information contained in the SCHUFA database, employers or third-party vendors may ask candidates to provide a self-declaration (Eigenauskunft) authorized by SCHUFA. The candidate is able to request the certificate from SCHUFA, and SCHUFA then prepares a standard report, which can be provided to the potential employer.

Driving Records / Motor Vehicle Records

The Federal Motor Transport Authority (KBA) (Kraftfahrt-Bundesamt) is one of the largest federal authorities in Germany. It was posted in 1951. It is headquartered in Flensburg, Schleswig-Holstein with offices located in Dresden. The KBA is responsible for enforcing the penalty points system called Punkte. The point system provides a uniform national set of measures and point system for the equal treatment of drivers.

Similar to credit data, driving records in Germany are not regarded as sensitive data but the KBA is not permitted under the BDSG to share information directly from within the Central Register of Traffic Offenders with employers and or third party vendors. In order to facilitate a verification of motor vehicle records in accordance with the BDSG an employer must first be able to demonstrate that there is a relevant and pertinent justification for the position for which the applicant is applying i.e. truck driver. Employers or third-party vendors may then ask a candidate to provide a self-declaration of their driving record by submitting a formal request to the Central Register of Traffic. The CRT also offers an online application.

Academic History

It is generally permissible for employers to confirm information about a candidate’s academic history when prior consent has been obtained.

Employment History

It is generally permissible for employers to confirm information about a candidate’s work history when prior consent has been obtained. It is not however permissible to inquire into a candidate’s previous salary unless the candidate has revealed the figures and used the information to negotiate a new salary.

Professional References

It is generally permissible for employers to contact a candidate’s references when prior consent has been obtained.

Personal References / Reputational

Checking a candidate’s character and general reputation is not permitted as this information is viewed as being irrelevant for employment decisions.

Criminal History

Employers in Germany may ask applicants to list any convictions that they may have on their application form. However, employers should request information about an applicant’s criminal convictions only if that information can be justified in terms of the position offered (e.g., the previous conviction of a book keeper for fraud, a truck driver for a road traffic offense, or a day care worker for sexual offense involving children). For most positions, employers are not entitled to ask whether an applicant has a criminal record.

However, employers may inquire if a candidate is likely to be sentenced to imprisonment to the extent the investigations or imprisonment may prevent the applicant from taking up the position for which they have applied.

Employers may ask candidates to provide a certificate of good standing also known as a Certificate of Good Conduct to be issued by the Registry Office (Führungszeugnis). This certificate will not contain all convictions in the Central Registry. In general, there is no information about the following:

• Criminal offenses more than five years old;
• Criminal offenses resulting in imprisonment not exceeding a term of three months or penalties not exceeding the amount equivalent to 90 days’ income (unless there are no other entries in the Central Registry);
• Criminal convictions resulting in imprisonment not exceeding two years when on provisional discharge for certain drug-related crimes (unless there are no other entries in the Central Registry);
• Imprisonment or detention of a young offender (i.e. younger than 21 years);
• Information about arrests or indictments that did not result in a conviction; and
• Civil suits, civil judgments.

 

Certificate Good Conduct (Führungszeugnis)

German Good Conduct Certificate - Führungszeugnis

The Federal Central Register (FCR) will issue a Certificate of Good Conduct on request to any person over 14 years of age who is the subject of that record upon application and confirmation of identity, signature and payment. No special form is required.

The person concerned may not have someone else represent them, even a lawyer, when making an application. However, the FCR will require an applicant’s personal details, name at birth, surname (if different from name at birth), all forenames, address, date of birth, place of birth and nationality alongside a signed request for the certificate.

If an applicant is resident in Germany then the individual must file the application with the Residents Registration Office also known as Einwohnermeldeamt in their place of residence. The Residents Registration Office will confirm the identity of an applicant, collect the fee for the Certificate of Good Conduct and pass the application on to the FCR for processing.

If an applicant is living outside of Germany the FCR will accept confirmation of identity and signature either:

• From a German consular or diplomatic office (e.g. embassy). The applicant should present there himself in person. The office also provides pre-printed forms of Good Conduct Certificate applications;
• From a notary public or a foreign authority.

Personal details may also be confirmed by sending an officially certified photocopy of personal identification papers (personal ID, passport) showing the personal details. The photocopy must be signed by the applicant before confirmation. If this application route is used, the applicant should supply all relevant information in a standard letter format including:

• Name at birth, surname (if different from name at birth) all forenames
• Address
• Date of Birth
• Place of Birth
• Nationality

The Homepage of the FCR contains an application form: www.bundesjustizamt.de (new window). Due to the confirmation of identity and signature required, applications for issue of Certificates of Good Conduct may not be made by e-mail.

Company Registry Records

Information on the registration of German companies is published in the official gazette of the Ministry of Justice (Bundesanzeiger).  Every German limited liability company as well as shareholding or limited partnership company etc. is legally obliged to register with the multiple registration offices throughout Germany. The registration offices publish the entries from their registers in the Bundesanzeiger. The full  content of the register entries such as the official name, status, address, ownership, directors, capital, changes in name,  appointment of liquidators – removal from the register are listed.