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Compliance Update – Law Finally Outlaws ‘Back Door’ Criminal Records

March 12, 2015 Leave a comment

litigation%20As of March 10, 2015 United Kingdom’s Ministry of Justice finally passed a law formally outlawing employers and third-parties from carrying out ‘back-door’ criminal record checks on candidates in the United Kingdom. Violators could face criminal charges to include unlimited fines. Buyers of background screening services need to ensure screening providers are acquiring their criminal information in accordance with local legal provisions or could face criminal as well as civil sanctions by local authorities.

For years some third-party background screening providers as well as employers both within the UK and outside have tried to bypass a well-established lawful process for vetting criminal records for employment as well as other nefarious purposes in the UK whether by demanding a potential employee to use their rights under the DPA to see criminal information held about them (also known as ‘Enforced Subject Access’) or by other back-door routes of criminal court records.


Aletheia Consulting Group is the leading Global Background Check Consulting firm. We focus solely on providing industry leading independent third-party best practice advice to global organizations no matter where in the world your organization may operate from. Helping you make the right decisions.

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How to establish the reliability of International Background Check data

February 27, 2012 Leave a comment

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 an insight into 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 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:

  1. Existence of information in target country? (locate possible sources of the data)
  2. How is information maintained?
  3. 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)
  4. Legality of using consumer information for employment purposes? (can it even be used for employment purposes?, if so
  5. 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?)
  6. What is required in order to obtain the information?
  7. Timeliness of delivery?
  8. 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 .

Five African Nationals Arrested for Fake Visas, Passports, and Counterfeit Currency

February 19, 2012 Leave a comment

Five foreign nationals from Africa in India, including a woman, were arrested in the national capital for allegedly providing fake passports and visas, police officials said Friday.

“Gabriel Olawale Ajisafe, Sunny Odigie Sunday, Enwere Okethukwa Kelvin Enwere from Nigeria, Karolin Cherotich from Kenya, Augustine John Johm Kwaku Kyare from Ghana were arrested Wednesday from the Golchha theatre in Daryaganj and Ganesh Nagar,” said an official from Delhi Police.

It is believed that there were at least two more similar units functioning out of west Delhi, a place that has a high concentration of foreigners.

Around 120 fake passports, 300 Visas, and $22,000 USD worth in counterfeit US currency were recovered from the accused. “The mastermind of the gang was identified as Gabriel Olawale Ajisafe, 52. Ajisafe has been residing in Delhi for the last 30 years,” police officials add.

Sources said the east Delhi gang had operated from rented apartments and kept shifting to avoid detection. The gang spread its “message” in a unique manner. “The gang would arrange for fake passports for a certain client and offered them nominal discounts (the charges were anywhere between Rs 10,000 and Rs 25,000) if they spread the word about their ‘good work’ to the rest of their contacts. The gang also kept in regular touch with Indian “touts“, who would inform the gang about potential clients from FRRO, the passport cell and even local courts,” claimed a source

The arrests come days after the cops busted one of the biggest such networks run by Pakistan-based Kana and recovered fake currencies with a face value of Rs 2.3 crore and believe that the gang can have links with the illegal immigration rackets operating from Nepal and Bangladesh. The gang has also been producing fake passports of African and European countries and rough estimates show that they had sent over 110 men out of the country using fake documents and currencies. Most of those who sought their help were African nationals, whose passports and other travel documents had been confiscated by the Indian authorities after they violated Indian laws.

“The printing was exquisite and they could even reproduce the impression of the water mark of the genuine US Dollar. The prepared fake passports of the African countries were provided to the citizens of African countries whose passports had either been impounded in criminal cases or they had entered India illegally through the neighboring countries. The accused used multimedia technology software like Autocad, Corel Draw and other software for preparing the counterfeit dollars and fake documents,” said additional DCP (crime) Sanjay Bhatia.

The suspects had been running their office from Ganesh Nagar in east Delhi for the last one year.

Global background screening, an integral part of risk management

January 19, 2012 Leave a comment

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. Federal Sentencing Guidelines 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.

Way forward
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.

Background Screening Overseas Is Limited

January 13, 2012 2 comments

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.

International background screeningBackground Screening Overseas Is 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.”
—Andrew Boling, partner,
Baker & McKenzie, Chicago


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

Sri Lanka police introduces SMS service to track status of Police Clearance Certificate

September 5, 2011 1 comment

Sri Lanka PoliceSri Lanka Police on its 145th anniversary yesterday, launched a new service of SMS to track the status of the Police Clearance Certificates (PCCs).

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.

Background Checks in Europe

July 22, 2011 1 comment

Gerlind  Wisskirchen of CMS Hasche Sigle discusses background checks affecting employers in Europe. As published by Who’s Who Legal

Gerlind Wisskirchen, CMS Hasche SigleGerlind Wisskirchen, CMS Hasche Sigle

Background checks – the most recent since the 2002 financial   reporting scandals involving US corporations (Enron, Worldcom and Tyco) –   have acquired global significance for employers. Ever since,   comprehensive background checks, or ‘pre-employment due diligences’ have   been carried out in US corporations. In Europe, however, background   checks are not permitted to the same extent.

GERMANY

In Germany no specific legislation exists concerning background checks; the permitted room for manoeuvre must be determined on the basis of the existing legal situation. Statutory constraints with regard to the acquisition and storage of personal data are in place, warranting the protection of the private sphere and the right of self-determination. The applicant need not tolerate any background checks that go beyond an employer’s permissible right to ask questions within the limits of the German Equal Treatment Act (AGG) and the personality right of the applicant. The employer’s legitimate interest in the answering of the question must be so great that the protection of the personality right of the applicant is second to the right to ask questions. The applicant need not respond to inadmissible questions put by the employer, the applicant is also permitted to give a wrong answer to the question. When background checks are being carried out, the principle of direct acquisition of data via the applicant takes priority. Background checks with the help of third parties are therefore only admissible if the reliability of the applicant is of particular relevance, eg, in finance and childcare, or where special information is essential for the employment relationship. The applicant’s knowledge and consent will always be required.

The employer has a legitimate interest in information on the applicant’s personal particulars. Both before and after the job offer, the applicant may be asked to verify his personal particulars by presenting his ID card, passport, social security number or birth certificate. Otherwise, the employer can refuse the applicant. If there is legitimate suspicion that employees have not disclosed their true identity, the employer may demand the mentioned proof of identity, also during the existing employment relationship. The same applies to job application documents. Applicants submit documents concerning their qualifications and previous professional experience with their application. The employer may – both before and after the job offer – request the original documents for perusal, and after being given the applicant’s written consent, may also contact schools, universities and former employers directly. For data privacy protection reasons, as a rule enquiries made are limited to information on the duration and type of employment. In the case of breaches of such requirements, the applicant can assert claims for damages. In addition, there is the threat of an administrative fine of up to E300,000 pursuant to the German Data Protection Act (BDSG). Potential employers may only demand limited information on previous convictions or on the applicant’s financial situation. Questions will only be permitted if the information is relevant to the advertised position, for example because particular trustworthiness and financial reliability are required. Scrutiny of any previous convictions will only be possible in rare cases through presentation by the applicant of a certificate of good conduct (Führungszeugnis). The applicant’s career development and criminal history will only be allowed to be scrutinised in the existing employment relationship if this failed to take place already during the recruitment process, and if the concrete workplace is affected. Then, the written approval of the employee will be required, except in the case of legitimate suspicion of fraud on the part of the employee. Moreover, as a rule, the employer can request presentation of the employee’s work permit and residence entitlement without giving a reason. Creditworthiness checks like SCHUFA information or extracts from the commercial register are prohibited under the German Data Protection Act.

Primarily during the application procedure, HR departments – via internet research – are increasingly collecting data about the applicant that goes beyond the information communicated in the job application documents, notably the applicant’s professional background. Pursuant to section 28, 32 of the Data Protection Act, collecting personal data from the internet is allowed if this data is accessible to the general public, unless the protectable interests of the applicant outweigh this. With work-oriented networks like XING or LinkedIn, the data posted there by the applicant is accessible to the general public after log-in. Data that is posted by the applicant on social networking sites like Facebook may not readily be collected and stored.

Currently, the general terms and conditions of the operator provide for use of the network for private purposes only. Moreover, predominating interests of the applicant and lack of necessity as defined in the Data Protection Act are opposed to the collection of data. If the employer decides against an applicant, the job application documents must be returned to said applicant. If an action brought by the rejected applicant cannot be ruled out, copies of the documents can temporarily remain with the employer. Employee data can be stored for as long as it is required by the employer within the framework of the protection against unfair dismissal process. If the employer intends to introduce staff questionnaires, eg, in the context of works agreements, the approval of the works council must be obtained in advance (section 94 of the German Works Constitution Act) and the data privacy protection officer must be involved (section 4 of the Data Protection Act).

By conducting impermissible background checks, the employer will be in breach of the pre-contractual duty of care and of the general personality right. An impermissible background check can entail damages claims if the applicant can prove that the losses were incurred by obtaining unlawful information and that without this measure, the applicant would have been recruited. It is also possible to grant the employee damages of three monthly salaries, pursuant to section 15(2) of the Equal Treatment Act.

FRANCE

French law offers no explicit statutory framework for handling background checks. It contains provisions concerning admissible acquisition of data relating to applicants. Pursuant to article L.1221-6 of the French Labour Code, the employer can only obtain information about an applicant, which facilitates an assessment of their professional skills with regard to the position being offered. These professional skills must be directly required for the position. Social security enquiries about the applicant are generally prohibited, except if the applicant is not yet registered. In all other respects, personal particulars are allowed to be subject to comprehensive scrutiny. The employer can demand presentation by the applicant of the relevant job references, eg, of former employers, however, not the presentation of pay slips. In addition, the employer has the right to ask questions concerning previous positions and the grounds for their termination. The applicant’s consent relating to enquiries made to former colleagues is required.

Employers may make use of all information from the internet, irrespective of whether it was posted on social or work-oriented networks. In France, the employer is generally prohibited from reviewing any previous convictions as well as the applicant’s financial position. If applicable, the employer can – only by setting forth a legitimate interest – demand the current extract number three of the certificate of good conduct, which lists the heaviest penalties and can only be applied for by the applicant itself. An exception is made in the area of asset management, eg, in the banking industry. With applications in the areas of security or care, the employer additionally has the option, under administration law, of having police files reviewed by local government.

During the existing employment relationship, the employer as a rule (setting out its legitimate interests) can demand updated versions of the certificate of good conduct. Dismissal for breach of the duty to furnish the requested information is possible if the employee’s refusal with regard to furnishing the desired information results in disturbances in the peaceful working climate or if material qualifications for the function turn out to be false. The storage of employee data is possible after prior clarification regarding the affected employee. Employers additionally have the option of setting up biometric ID systems on their employees if CNIL (Commission National de l’Informatique et des Libertés), the French data protection watchdog, approves of their introduction. If the employer violates the above-referenced legal provisions or employee rights, the employee can claim damages or sanctions under criminal law, see article L. 1121 -1 of the French Labour Code. Pursuant to the French Criminal Code and the French Labour Code, an employer could face up to three years of imprisonment, and a fine of up to E46,000 in the event of discrimination with regard to an employee’s membership of a trade union.

ITALY

In Italy, prior to the acquisition of personal data, there is no general duty to notify the applicant or to obtain the applicant’s approval. The person concerned should be informed in advance concerning the purpose of the background check, in terms of whether the data has to be surrendered voluntarily or obligatorily and with regard to the consequences of non-voluntary surrender (see article 13 of the Italian data protection law).

At the employer’s request, applicants must communicate their social security number to the employer. Publicly accessible data, eg, a birth certificate, can be perused by the employer at any time without the approval of the applicant; detailed information can only be viewed with the approval of the applicant, the employer demonstrating a special interest. The employer can comprehensively scrutinise statements made by applicants about their educational background. Upon request, schools and universities are entitled to surrender their assessments (possibly via electronic information) to the corporation. This generally also applies to enquiries made by former employers. The employer may call on the applicant to handover documents on previous nationwide convictions and pending proceedings before the court in the potential employer’s district. However, the employer may not call for bank and credit card information.

The employer’s right to information also continues to exist during the current employment relationship to the same extent as prior to recruitment. In exceptional cases, dismissal is possible if, after examination of the data, it subsequently emerges that the employee fails to meet the requirements of the position. The employer may store data in the individual case, stating a legitimate purpose, for the duration of the employment relationship. In the event of unauthorised or unlawfully conducted background checks, the employer will be liable for prosecution under civil law and criminal law. The employer will be liable to pay damages or ‘smart money’ if the processing of personal data brings about losses for the employee or if data is stored longer than permitted for the required purpose.

DENMARK

The employer’s right to information is determined in Denmark notably by way of the Danish Act on Processing of Personal Data, APPD. With the written approval of the applicant or employee, the employer can subject their personal data to scrutiny by means of a database governed by social security legislation. If the applicant refuses such scrutiny, the employer can refrain from recruitment for this reason provided the employer has already informed the applicant of the consequences thereof.

With regard to educational background and previous activities, as a rule, the data from the application may be verified by the employer. It is not usual in Denmark to issue job references. Applicants can, however, be called on to surrender contact data of former employers. Also in the existing employment relationship, scrutiny can take place if there is legitimate suspicion of fraud by the employee to the detriment of the corporation. If the employer acquires information via social networks, it must grant the employee the opportunity of answering. The applicant must disclose previous convictions if the offence is relevant to carrying out their duties and if there is a temporal proximity between the offence and the position. This is the case if an official permit regulated by statute for exercise of the function is required, for example relating to insurance clerks, attorneys or finance managers. The legal limits of data acquisition, notably the proportionality principle, are applicable in favour of the applicant and the employee. As a rule, the employer obtains information about relevant previous convictions from the public criminal records kept by the police with the written approval of the applicant.

The employer is authorised to keep personal data of applicants and employees by electronic means. It is permitted by statute to store data for as long as a legitimate purpose for this exists. As a rule, this data is allowed to be stored for up to six months after its transmission to the employer. Danish legislation provides for sanctions like monetary fines or damages for financial losses in the event of illegal collection of data. It is also usual to publish the corporation’s breach on the website of the Danish data protection agency.

THE NETHERLANDS

In the Netherlands, background checks regarding applicants and employees are generally permitted, but limited by the Data Protection Act (Wet Bescherming Persoonsgegevens). Background checks are only supposed to be carried out relating to necessary data for the firm offer of a position.

The information on professional experience and educational background listed in the application, can, however, be subjected to scrutiny by the employer by making enquiries to former employers. Job references are seldom issued in the Netherlands. On the publicly accessible homepage of the Dutch courts (www.rechtspraak.nl) employers can inform themselves about the possible insolvency of the applicant.

However, it is up to applicants as to whether they provide information to the potential employer about their financial situation and credit rating. This principle also applies to any previous convictions. Exceptions apply relating to function-related previous convictions, eg, in the case of an applicant for a position as a primary school teacher previously convicted for the sexual abuse of children.

These principles relate to the duty to provide the requested information comprehensively, at any time during the current employment period, and to the extent that scrutiny of data relating to the employee’s position is relevant, and the interests of the employer outweigh those of the applicant. In the Netherlands, the right of the employer to be able to use all private and work-related information from the internet has existed hitherto. To date, notification about the found information has not been prescribed by statute. Personal data can only be stored for a limited period. There is differentiation made between information relating to applicants who are recruited and applicants who are not recruited. Personal data relating to the first-mentioned applicants can be stored during the entire term of employment. With regard to the applicants who are not recruited, differentiation has to be made between whether applicants have consented to further storage of their data (storage for one year admissible) or not (storage for four weeks admissible). The Dutch Data Protection Commission are allowed to sanction corporations breaching the Data Protection Act with monetary fines of up to E15,000.

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