Today I’d like to share a recent discussion that has been taking place the last few weeks on our LinkedIn Forum, the International Background Screening Forum that I think our readers will find resourceful.
The discussion provides an interesting primer and insight to the rather fragmented nature of the global background check market and the challenges faced by screening companies outside of their geographic location (country of domicile) that look to source their U.S. or overseas based clients international background check research either through direct to source i.e. a government agency abroad or to third-parties whether they are global wholesale providers or even in-country providers.
In summary a rather thought provoking statement and question was made that not all countries are equal when it comes to the reliability and accuracy of records around the globe. It was also expressed that clients (multinational employers) are paying a premium for international searches and that there is a growing concern from a US based background screening company’s point of view as to how one should go about evaluating the reliability and accuracy of such results on a country basis. From a practical point of view it is believed that there might be countries that may not be worth performing a records search because… “there are no records to search”, or “70% of the people in a country can pay officials to lose the record”, or “50% of the records become “nonexistent” for political or religious reasons,” etc.
These are all very valid questions, (1) what is the reliability / accuracy and (2) if based on available information, local records might not necessarily provide at least a certain level of accuracy should an organization even attempt such research? As a global advisory firm specializing in this area we receive these types of questions more often than you would think. We’ll discuss both of these points.
How to Establish Reliability / Accuracy in International Background Check results
In many respects even after 12 years of specializing in the global background check market many would agree that it is still very much considered “The Wild West” and at its emerging stage due to the fragmented nature of differing laws, availability and access to local records and data required to undertake a legitimate check, costs, and most importantly differing points of view on what is legally permissible versus folks that just want to turn a quick buck for less than ethical work product. In the end the latter has done more harm than good but it’s getting better through education and the effects of increased global trade (increased demand) but also increased enforcement action of those that flagrantly violate compliance and personal privacy.
Unfortunately there is no public available resource that details by country each of these aspects of background screening on a country basis, at least at this time. This type of information is generally closely held by companies that actually specialize in this area of the market and many may feel that it is considered part of the “secret sauce” that differentiates them from their competitors (particularly global specialists). Aletheia Consulting has in fact conducted such research on a number of geographies around the globe.
With that in mind we will discuss the guiding principles we apply when working with our CRA (background screening) clients no matter whether they may be a US based or overseas based provider (ie. a screening provider located in Bangladesh as an example) looking to expand their geographic footprint and design their international background check product portfolio.
We carefully examine each local data source (i.e. criminal records, credit, etc..) by country and by product type with the following 8 specific questions in mind:
- Existence of information in target country? (locate possible sources of the data)
- How is information maintained?
- Reliability and credibility of information? (whether held directly by gov agency but also how credible the third party that may be in conducting the search on the customers behalf)
- Legality of using consumer information for employment purposes? (can it even be used for employment purposes?, if so
- If based on answers related to No. 4 that it is legally permissible for employment – how can research be accomplished? Direct to source or through a third-party?)
- What is required in order to obtain the information?
- Timeliness of delivery?
- Affordable cost of information?
Questions 1-5 can then be applied to a Risk Matrix and conclusions drawn as to the quality and credibility.
This of course assumes one also factors in the cultural and environmental factors involving a country’s level of corruption (i.e. the practice of paying bribes in order to get out of being arrested or to pay off a claimant prior to court in order to avoid a trial which is actually a common practice in some countries).
A country’s level of corruption and actual fundamental issues around the quality of source data will always be potential factors in international background investigations that one should consider but should never be a deterrent or an excuse for not conducting an adequate level due diligence on a potential non-US or local employee, contractor, or trading partner. Remember many countries including the U.S. have enacted various anti-corruption/bribery and terrorism statutes (Foreign Corrupt Practices Act) as well as various industry specific guidelines (US Federal Sentencing Guidelines for Organizations) such as within the financial services, IT, healthcare, and many other industries that require a reasonable/responsible level of due diligence be applied when making a business decision.
What to expect from your local or global background check provider
When working through a 3rd party (in-country partner or even one of the “wholesale international providers”) aside from the usual production guidance i.e. what they require from you to undertake the search and what to expect in return I recommend you require them to demonstrate a sufficient working knowledge of the geographies they claim to be able to support. This needs to be supported by their willingness to educate you and or provide sufficient guidance for you to be able to communicate the local cultural and legal provisions governing access and use of the data to your clients or even candidates. You should then have this information cross referenced and verified independent and directly with the source agency and the relevant privacy commission (if applicable).
In the end there must be transparency with your overseas background check providers. If not than you or your organization may be placed in a risky situation of possibly violating an applicant’s personal privacy rights or even worse an organization failing to be able to demonstrate that they applied the necessary level of due diligence in their background screening process.
I am not a firm believer in “blind faith” or “blind trust” as someone mentioned in the discussion about relying on their provider without verifying the facts. This is an unwise practice and creates significant risk for you and your client. Our clients come to us for expert advice and if we don’t know the answer to their question than we should know how to derive the right (accurate/truthful) answer or tell them we simply don’t know.
Some folk’s spoke of records not being available in certain geographies and that is absolutely accurate. In fact one of my most famous recommendations to clients is that “any firm that purports to offer and deliver criminal records for employment purposes from every country on the planet, don’t walk away, run away!” This simply isn’t legally permissible in a multitude of countries and is an outright criminal offense. As a provider of international background screening services however it is our job to be able to speak to both the local environment as well as our experience to be able to offer best practice advice for our clients in order to address and in some cases offer next best available options to consider.
In conclusion, just because criminal records in a country may be paperwork intensive, expensive, take an extremely long time to accomplish, or worst case scenario not very accurate due to the reasons discussed today as long as the organization has applied that reasonable level of due diligence..meaning that if it is legally permitted and available for employment the organization should have the check done by a responsible provider. The question then may become what source and as long as you’ve applied the guidelines we discussed above during the sourcing and selection process you should be okay. If as a provider you don’t have the in-house expertise of the local geographies than we believe you have one of two options (1) spend the time to research the various geographies on your own (although it will be a very long, painful, and expensive process), or (2) hire or partner with local and or global subject matter expert that has already done the leg work and who is able and willing to be your subject matter specialist.
International Background Check Market Outlook
All and all the international background check market even with its rather interesting challenges continues to grow and further develop in leaps and bounds nearly by the month. I am a firm believer that through continued education of our buyers, providers, applying best practice concepts, and striving to do the right thing as a business owner and as an industry will many of these challenges have less of an impact on the emerging international background check market.
For more information about Aletheia Consulting Group’s advisory services in international background screening please feel free to visit our website or email us at Info@AletheiaConsultingGroup.co .
A developing story out of New Zealand indicates a government inquiry has been launched into Kim Dotcom’s (born Kim Schmitz) residency as legal experts doubt his alleged clear criminal record.
Dotcom is a German-Finnish computer programmer and businessman who rose to prominence during the dot-com bubble and was convicted of insider trading and embezzlement in its aftermath. He is also known as the founder of Megaupload and its associated websites. He legally changed his surname to Dotcom circa 2005. On January 20, 2012, the New Zealand police placed him in custody under the charges of criminal copyright infringement in relation to his Megaupload website.
German law dictates Dotcom’s convictions should not have been wiped before 2017 and one lawyer believes he may have forged his way into New Zealand.
Arriving in New Zealand, every foreign national must present a police clearance form and until now New Zealand’s Prime Minister John Key has insisted Kim Dotcom’s was clean, but yesterday admitted their background checking process is flawed and that a Government inquiry is underway.
“There’s clearly an anomaly between the way the law is interpreted with tests between residency and the Overseas Investment Act because one looks at convictions and one looks at records and that’s a slightly different test,” says Prime Minister John Key.
Regardless of how the law was interpreted it’s clear that New Zealand’s residency and immigration background check program is severely flawed if source documents are not validated.
With increasing connectivity, there is an advent of a truly global workforce, multinational operations has led to an exponential increase in the risks associated with candidate recruiting and contract and or contingent workforce.
Human capital is increasingly being acknowledged as the most important investment for any company. Finding the right talent in the right job at the right time is an enormous challenge that global HR teams are facing in today’s current hiring scenario.
In all of this, in the more recent times, individuals from corporations involved in various crimes as well as increased legal scrutiny related to anti corruption has led to increased realization about the value for background screening all employees, contractors, and vendors at all levels.
Reported incidences of corruption, doing business with vendors listed on sanction and debarred parties lists in the petroleum sector, unauthorized access to sensitive customer information in financial services sector, instances of staff in educational institutions involved in exploitation cases — all have led to growing awareness of the need for background screening of employees as well as vendor / contract staff.
The reality is that an organization’s reputation is at stake should they hire someone or do business with an entity that has a questionable background. Brand equity and value can be adversely impacted if it is known that an organization didn’t exercise a reasonable level of due diligence before recruiting a certain individual or decided to do business with a trading partner who had a questionable background. Thus, lack of background screening or even not performing best practice type checks depending on the circumstance on current or potential employees and or trading partners is something that could come back to haunt any organization — through reduced business, inability to retain better employees and adverse impact on its public image.
If that wasn’t enough, not only can it be rather embarrassing for an organization that does not excise due care in vetting their employees, contract staff or trading partners such organizations can also be exposed to enforcement action by government authorities for not conducting what may be considered a reasonable level of due diligence or have not applied “due care” as may be required by new and existing anti-corruption laws such as the U.S. Foreign Corrupt Practices Act (FCPA), Sarbanes Oxley, Patriot Act, and US.for Organizations (FSGO) and many other similar industry and or country specific laws like the UK’s Bribery Act.
The FSGO requires organizational implementation of compliance standards and procedures that are “reasonably capable” of reducing the prospect of criminal conduct by employees, contractors, and business partners. In fact, according to FSGO, due care must be made in avoiding passing on to individuals whom an organization knew, or should have known, had a propensity to engage in illegal activities.
What is considered adequate due diligence or due care according to many of the above mentioned legal provisions is beyond the scope of this article and will be discussed in a later article.
Global Background Screening Industry Overview
Although there has always been some demand for background checks abroad, the initial driving force for international or global background screening was first introduced about ten years ago. This was triggered by the post 9/11 attacks. With a number of Fortune 1000 companies going global — either through setting up their own offices or outsourced work abroad, it was expected that their overseas based entities (mainly IT and BPO companies) followed processes that were an integral part to their recruitment policies. (Incidentally, recent studies show more than 90 per cent of Fortune 500 companies have a formal policy of background screening their employees). This led to background screening of their employees as well as their outsourced counterparts.
The concept of global background screening is no longer limited to just IT or the financial services segments. A growing number of organizations in the manufacturing, maritime, defense, pharmaceutical, petroleum, hospitality, health care, retail, travel, telecom, educational institutions and entertainment industries are adopting international background screening practices.
Today’s multinational companies (MNC) face a growing challenge in managing the collection, use, processing and transfer of mass amounts of personally identifiable information globally, especially in light of the myriad of data protection (privacy) laws that exist today. Effective management of global talent management, data privacy, and security involves a multi-disciplinary approach involving legislation, technology, and business processes in order to fully understand and address data protection and personal privacy issues on a global basis. It also requires recognition that effective management is a process that must include solutions for responding to constant changes in both internal and external factors effecting human resource data use especially when it involves screening candidates around the world.
The actual overseas background screening process involves carrying out various different types of checks based on a number of factors such as type of hire (entry, mid, professional, executive), regulated position, level of risk the individual position poses to the organization, and finally, the country at hand to name a few. Any misrepresentation in the below listed checks should be reported as a discrepancy. The discrepancy rate is the percentage of misrepresentations/fraudulent/adverse information that a comprehensive background screening procedure should uncover during the verification process.
- Identity check – confirms candidate is who they say they are
- Right to work check – confirms candidate is authorized to work in a given country
- Address verification – confirms candidate’s current residency
- Education – confirms academic credentials
- Employment – confirms claimed work history
- Reference check – confirms professional reputation
- Professional credential verification – confirms professional certifications
- Criminal records history – determine if candidate has a propensity to engage in illegal activities
- Regulatory and Compliance / Sanctions Search – determine if candidate has been sanctioned by relevant regulatory authorities, has been the subject of other enforcement actions, or identified as a possible politically exposed person
- Adverse media – news articles that contain derogatory information the candidate
- Conflict of interest – evaluate if candidate may be involved in multiple interests
- Drug Testing – determination if candidate has a propensity to abuse illicit drugs
- Trading Partner / Vendor Screening – determine if vendor is legitimate and of good standing
It is critically important that ALL checks are initiated only after an authorization in writing by the concerned candidate is obtained.
A “credible” international background screening company will ensure that the process goes only through the legal / legitimate route of obtaining records or verifications. This may imply relatively later verification compared to some agencies who provide “quick,” “easy,” “cheap” criminal record results from every country on the planet but through processes which may not be able to stand the scrutiny of law! This was most recently highlighted in a case involving a company who purported to provide court record checks from a country where it is well know that court records are not the best practice source for employment purposes. The end result was a series of missed criminal records that should have been reported, the loss of a screening company’s entire clientele, and finally an ongoing litigation involving suspected fraud and misrepresentation.
While more and more screening companies offer international or global service, the best way of managing background checks at least internationally is to ensure that international background checks are done by organizations that actually specialize in this area. This assumes the provider is able to demonstrate they have more than just a passing knowledge of available products. In fact specialized providers should be able to demonstrate a thorough understanding of the local data sources, a clear understanding of the specific geographic and search requirements, the legal environment (laws related to data/record access rights, personal privacy, relevant employment and human rights laws), and who are able to offer specific answers to questions related to best practice screening in the given country. A specialized global background screening organization would not ordinarily compromise its reputation by not following local compliance requirements.
Data shows that individuals with a questionable background tend to join organizations that do not conduct background screening of its employees or contract/vendor staff.
Hence, when these organizations do start conducting background screening, they find many discrepancies (number of employees who have misrepresented facts on their resumes or have a criminal background) and/or go through huge attrition (as employees who have misrepresented facts or have negative background prefer to leave than be found out) when they announce background screening.
This is validation of how background screening becomes a deterrent against employees or prospective employees or even vendors misrepresenting facts on their resumes or employment applications. Thus, background screening proves to be a good insurance against risk to reputation related to bad hires as well as trading partners!
The international or global background screening industry is still in its emerging phase. There are many organizations/institutions overseas who, as a policy, do not share information with third parties for verification purposes. For some organizations and institutions which do not mind sharing information, it can be a longer process as databases are manually maintained and verification process involves going through very old data maintained physically.
Employment checks that can be conducted at the click of a button in the US have to be conducted through phone calls, faxes, or emails or site visits in India.
Moreover, many organizations abroad do not maintain databases or records for temporary employees, which lead to unavailability of such crucial information.
Criminal background information that is available through various online databases and court records in the US are not comparable with what is available in other geographies. In many countries, such information needs to be sought at the central repository level and even locally in the concerned jurisdictions.
Collaborative online database solutions involving all parties concerned — the candidate, the recruiter, the verifier, the verifying authorities, etc. — will help in developing a ‘pre-qualified and pre-checked’ ready-to-hire talent pool — which is the need of the hour in the present economic scenario.
Aletheia Consulting Group provides multinational companies best in class International Background Check Provider Vendor Evaluation and Audits. If you would like to learn more about our Services for Multinational Employers please feel free to contact us at terry.corley@AletheiaConsultingGroup.co.
The following article is from Workplace Management and explores the landscape of background screening overseas. More and more screening companies that have popped up over the last decade are now marketing their services for international background screening from nearly every country on the planet, but employers should be aware of the information they can legally generate is likely to be more limited.
‘What works in the United States doesn’t work abroad. … In Europe, what’s private stays private,’ an attorney says.
By Fay Hansen
The background screening industry in the United States is a relatively unregulated multibillion-dollar sector that has no comparable foreign counterpart. U.S.-based employers with screening policies designed to meet their domestic needs and the U.S. legal framework face a completely different reality when they move abroad. Particularly in the European Union and increasingly across the developing world, a job applicant’s right to privacy trumps an employer’s right to collect information about a potential employee. ”What works in the United States doesn’t work abroad,” says Andrew Boling, partner at Baker & McKenzie in Chicago. “You have to assume that your screening practices will be restricted. And in the European Union, background screening is much more limited, even for an applicant who is applying for a job in the United States. Criminal background checks are limited if they are allowed at all. Credit checks are even more restricted and seldom done, with very limited exceptions.”
In many overseas locations, employers are not plagued by the same levels of employee theft and fraud and workplace violence that prompt high levels of screening in the United States. “Anecdotally, if you look at issues like workplace violence, the incidence is much lower in Europe,” Boling says. In addition, sharp differences in legal liabilities diminish the need for screening. “The negligent hiring concept is a very U.S.-centric risk,” Boling says, “so screening issues abroad are not as grave as in the United States.”
“What works in the United States doesn’t work abroad. … In Europe, what’s private stays private.”
The severe limitations placed on screening in other countries arise from a fundamental appreciation for and deference to individual privacy rights. “Outside of the United States, individual privacy rights enjoy the same protections that we give to our First Amendment rights,” Boling says. “In Europe, what’s private stays private.” In France, for example, credit checks generally are not permissible even if a job applicant consents.
The levels of consumer debt are also generally lower outside the U.S., and personal bankruptcy is much more uncommon, so credit checks commonly generate a lower number of negative hits in the countries where they are permissible. Non-U.S. employers also take a different approach to the financial status of job applicants. “How you manage your personal finances is considered to be irrelevant to how you qualify for or perform on a job,” Boling says.
U.S. employers operating abroad often do the maximum amount of screening allowed by law, but they are likely to encounter greater limitations going forward, Boling notes. Although laws concerning background screening are still emerging in the developing world, he sees a trend toward adopting the more restrictive approach to screening that is common in Europe rather than the more unregulated U.S. approach.
“In Asia, there is embryonic legislation that is following the European model, but is somewhat less restrictive,” he says. China’s 2008 workforce legislation, for example, embraced the European model of employment rights. U.S.-based screening companies are now marketing their services outside the United States, but employers should be aware that the information they can legally generate is likely to be more limited.
Workforce Management, February 16, 2009, p. 37
Former South African police constable was recently found guilty of corruption for selling “clean” police clearance certificates. Through various South African media sources, a former police constable was fined R10,000 or six months in prison for corruption by the Bellville Specialized Commercial Crime Court this past Monday.
Thanduxolo Mbeke, 31, was sentenced to an additional two years in jail. According to court records, Mbeke accepted a R1500 bribe for a police clearance certificate. He subsequently pleaded guilty.
In November of last year, the Western Cape directorate for public prosecutions authorized a sting operation after Mbeke requested R2000 from bus owner Moosa Moolla.
Moolla reported Mbeke immediately to the Cape Town Central vehicle identification section (VIS), which assisted in the arrest.
A month later, Moolla returned to the VIS and gave Mbeke the money who accepted it and immediately issued a “clean” police clearance certificate without actually checking Moolla’s records.
Conclusion: this recent story exemplifies the need for global and transnational organizations to ensure that screening providers of international or global background screening services comply with required Foreign Corrupt Practices Act and Anti-Bribery compliance requirements. For assistance in evaluating such risk please feel free to contact us.
At a time when many countries throughout the Asia Pacific Region are combatting terrorism, illegal immigration, human trafficking, forged identity documents, and Certificates of Good Conduct (criminal record checks) it appears Malaysia may be making it easier for criminals to beat the system.
A recent report from a third-party immigration assistance firm related that the Malaysian Immigration Department recently announced that it will eliminate the requirement for foreign nationals to undergo a Certificate of Good Conduct Certificate process through the Malaysian Ministry of Foreign Affairs Office when applying for a Residence Pass.
This at a time when Malaysia was upgraded to Tier 2 from Tier 3 in the United Stated Trafficking in Persons (TIP) Report for 2010.
According to the TIP Report the following is a description of the Tier Placements:
Countries whose governments fully comply with the Trafficking Victims Protection Act’s (TVPA) minimum standards.
Countries whose governments do not fully comply with the TVPA’s minimum standards, but are making significant efforts to bring themselves into compliance with those standards.
TIER 2 WATCH LIST
Countries whose governments do not fully comply with the TVPA’s minimum standards, but are making significant efforts to bring themselves into compliance with those standards AND:
a) The absolute number of victims of severe forms of trafficking is very significant or is significantly increasing;
b) There is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year; or
c) The determination that a country is making significant efforts to bring itself into compliance with minimum standards was based on commitments by the country to take additional future steps over the next year.
Countries whose governments do not fully comply with the minimum standards and are not making significant efforts to do so.
ACG Featured in July Aug NAPBS Journal, Background Screening Essentials in Japan
The SMS service, named as Police Clearance Certificate Status Tracking SMS Service, is offered in collaboration with the Information and Communication Technology Agency (ICTA) .
The new service will benefit persons who request police certificates for various purposes such as local and foreign employment.
Under the new system applicants can type PLC(space)CRT followed by the assigned reference number on their mobile phone and send it to 1919 to find out the status of their PCCs.
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.
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
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:
- 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 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.
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
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.
It is generally permissible for employers to confirm information about a candidate’s academic history when prior consent has been obtained.
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.
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.
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)
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
- Date of Birth
- Place of Birth
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.
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 “cost effective,” but it is absolutely essential to confirm the fact that the provider has more than a passing knowledge of the 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.
Aletheia Consulting Group provides multinational companies best in class International Background Check Provider Vendor Evaluation and Audits. If you would like to learn more about our Services for Multinational Employers please feel free to contact us at Terry.Corley@AletheiaConsultingGroup.co.