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Brazil – Snapshot of Good Practice Guidance in Employee Screening

September 17, 2015 Leave a comment

brazil

Brazilian law places non-statutory limitations on an employer’s ability to seek background checks for employment purposes, including criminal record checks, consumer credit checks, or driving record checks. Denial of employment based on information solely contained in a background check, however, is warranted only if that information suggests a candidate’s working capacity, safety, or reliability would be materially impaired. A 2004 ruling by the 2nd Regional Labor Court determined that no worker may be fired solely based on the fact that they have an open file in a Credit Protection Service. Otherwise, an employer could face liability for discrimination. A candidate must expressly consent to undergo a background check. For example, an offer letter stating that employment is contingent upon the successful completion of a background check, signed by an applicant, and could indicate their consent. An applicant who refuses to consent to a medical examination however may lawfully be denied employment. The individual right of intimacy guaranteed by the Brazilian Constitution obligates employers to safeguard the confidentiality of all records relating to background checks.

Governing Legislation

  • Federal Constitution of 1988
  • Brazilian Consolidated Labor Laws (CLT), enacted in 1943
  • Federal Law No. 8.078, Article 43, September 11, 1990 (Consumer Protection Law)
  • Law 12.846, Anti-Corruption Law

For more information about Good Practice Guidance in designing a country background screening policy that complies with local legal and cultural norms for Brazil please feel free to contact Aletheia Consulting Group and ask about our Country Essential Guides.

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We’re not in Kansas anymore.

September 15, 2015 Leave a comment

NotKansas_4978Once an organization recruits from outside the U.S. a close understanding of a country’s local legal and cultural environment is needed before undertaking any sort of background check. The fact is, the concept of background screening candidates outside the U.S. is still very much a new business concept and the legal and cultural landscape varies from one country to another. What is legal in one country doesn’t necessarily mean that it’s legally permissible or even culturally acceptable in another.

There are very few specific laws governing background screening around the globe today, however various pieces of legislation cover parts of the background check process. These areas include privacy, employment, consumer reporting, human rights, legal access to and use of criminal records, financial data, and rehabilitation of ex-offenders, sex, family discrimination, and disabilities to name a few.

Country Level Background Screening Essentials provide the information today’s global HR and compliance professionals need when implementing global background screening programs.

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Workplace Medical Examinations & Drug Testing in Mexico

September 4, 2015 Leave a comment

Flag_of_Mexico_(reverse)The following excerpt from our Mexico Country Essential Guide provides an overview of the legal landscape related to workplace medical examinations and Drug Testing.

Under Mexican law, employers may condition employment upon the satisfactory completion of medical examination. However, such request must precede any offer of employment. A pre-employment medical exam requires the consent of the applicant and must be conducted by the employer’s authorized physician (when made in house) or by an authorized laboratory or physician (if outsourced). Any proof of consent must contain specific language indicating that the candidate agrees to submit to medical testing. The purposes of collecting such sensitive personal data and a candidate’s authorization for having such data transferred to the employer must be included in the privacy notice. A candidate’s refusal to consent to medical examination provides grounds to deny employment, if such conditioning is justified by the job characteristics and responsibilities.

The results of employee medical examinations must be treated as strictly confidential by any of the parties that are part of the information processing and according to the privacy notice. Such information must be kept and retained by the laboratory or authorized physician for a period of at least five years; regarding the employer, the information must be discarded when it is no longer necessary.

Drug Testing

Employment offers may be made contingent upon negative drug test results. As with medical examinations, any request for a drug screen must be made prior to extending an offer of plant. An employer may elect not to hire a candidate if he or she refuses to consent to a drug test. Records of employee drug screens are highly confidential and must be processed according to the terms and conditions of the corresponding privacy notice, and discarded by the employer as soon as they are no longer necessary.

Aletheia Consulting Group provides expert cost-effective global advisory solutions for multinational organization human resource, compliance, privacy, and security risk management resource needs. Our primary focus is on companies that have overseas operations that seek to navigate the sometimes challenging sea of international risk management involving the people, processes, technology and organization. If you’d like to learn more about our Services for Multinational Employers please feel free to contact us at Terry.Corley@me.com.

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