International Employee Screening

No matter how comprehensive the recruitment process is, employing new workers will always carry an aspect of the unknown. Effective employee screening aims to minimise the unknown and mitigate risks associated with recruitment, from verifying an educational degree in China to confirming the validity of a British passport. Reducing risk and gathering intelligence is key.

Screening applicants from different backgrounds and in different countries requires that HR deal with prospective employees from a multitude of cultures and nationalities, all with their own expectations and regulations. In some countries, it’s not legal to run a third-party criminal check (however, it may be possible to research publicly available sources for evidence of criminal activity or for the candidate to obtain and present their own criminal record certificate). Some cultures even consider it disrespectful to check a person’s past employment.

We can help you identify the legal, social and cultural screening requirements and prohibitions and considerations in each of the countries you intend to hire in. For each country where workers have personal, work and education history, we’ll help you find out if there are existing regulations concerning background screening. It’s important to be aware that failure to meet country specific regulations could result in your business being non-compliant in that country, or leave you open to claims your background screening process is discriminatory.

Consistency is crucial when conducting any type of background check. Inconsistencies can be shown as points of discrimination or poor hiring practice and can lead to problems. When you create a global background screening policy, it’s important to ensure the policy is consistent across all locations within the limits of local legislation.

Most employers conduct background checks on new employees globally, but only some screen subcontractors. This opens a significant gap for workers to slip through the background screening process unnoticed. That’s why it’s essential to create a detailed policy the company can follow during all hiring procedures, including that of third-party contractors.

It’s of vital importance to know the local data protection laws of the country where you’re hiring and conducting your international background screening. Background screening processes are necessary for the effective and efficient management of talent in an increasingly global and interconnected workforce. However, the various cultural differences and regulatory systems impose very different requirements on how a company can implement a screening policy and process. As a consequence, any company that is setting up, or evolving, their background screening processes will need to adopt a holistic approach which is flexible and intelligent enough to be able to recognise local differences and address those differences efficiently and cost-effectively. It will also require specific knowledge of local law, customs, and enforcement priorities.

There are notable considerations organisations need to keep in mind when working with personal data subject to the General Data Protection Regulation (GDPR). Below are just a few of the components of the GDPR that may impact employment background checks:

• Candidate rights: Candidates have the right to information about the screening process, including receiving a privacy notice providing the individual with insight on how and why their personal data will be processed. Open and transparent, upfront communication to candidates is crucial. This is not a new concept, but the GDPR introduces some new technical requirements.
• Consent: The GDPR allows an individual the right to withdraw consent at any time and as easily as they provide it. It presumes consent won’t be valid unless separate permissions are obtained for different processing activities. Importantly, obtaining consent in an employment context is difficult and will generally not be relied upon for background screening due to the imbalance of power between the employer and the employee. Separately, however, written permission (not to be confused with consent) should always be obtained from candidates before a background check gets underway. This will ensure you can demonstrate to third parties (such as referees and data providers) that you have been authorised by the candidate to receive their personal data.
• Object to processing: An individual has the right to restrict and/or object to the processing of their personal data in some circumstances. It’s also possible for an individual to make a general objection to the processing of personal data, even if its accuracy is not contested. When this objection occurs, the processing of the personal data (or background screening) may need to be stopped while the organisation reviews and responds to the individual’s concerns.
• Data portability: The GDPR codifies a new right for individuals to request that their personal data be transferred from one organisation to another in certain circumstances.

Employers engaging a third-party screening provider to conduct an employment background check may wonder if they can use reports and report content for purposes other than reviewing a proposed hire’s work eligibility. It’s essential to know the information contained within these reports can only be utilised for employment screening. Put simply, if you get a report for one reason, you cannot use it for a different purpose.

Public availability of information is not necessarily an indication of permissible use for employment screening purposes. What is permissible varies on a country by country basis. Local knowledge is of the utmost importance to ensure compliance with local legislation and regulation.

A works council is an organisation representing workers which functions as a local/firm-level complement to trade unions but is independent of these, at least in some countries.

Particularly within the European Economic Area (EEA), engaging staff overseas could involve input from a works council. For example, in Germany, if a company decides to implement background check policies, prior consent from the works council is required. This right applies to any formalised and standardised collection of information concerning candidates or employees. By putting in place a works agreement, the business can run individual background checks without further involvement of the works council as long as the rules of the agreement are applied.

A cross-border transfer of personal data occurs when data is accessed or accessible from another country. European law promotes the free flow of data between countries within the EEA while transfers of data outside the EEA are generally restricted. For example, even if the data is stored in the EU but is accessed or accessible from Australia, then there is a data transfer. The law restricts cross-border data transfers outside the EEA because there’s a presumption the law wouldn’t provide an adequate level of protection compared to EU law.

Due to globalisation, the workforce is becoming more international and mobile. More candidates are living, working or studying in other countries than their original country of residence. And in Europe, the free movement of workers is enshrined in EU law, so it’s common for applicants to have pan-European experience. The overall impact is that companies will frequently make data transfers when conducting background screening on these international candidates.

There are different types of mechanisms companies can utilise to permit data transfers for their background screening programmes:

• An adequacy decision by the European Commission for cross-border data transfers to certain countries, such as Canada or New Zealand. Or companies that have an EU-US Data Privacy Framework certification. The EU-US Data Privacy Framework was designed by the US Department of Commerce and the European Commission to offer a mechanism that would meet data protection requirements and foster transatlantic commerce, assisting companies in the EU with transferring data to companies in the US.
• Appropriate safeguards such as standard contractual clauses, approved code of conduct, approved certification mechanism, and Binding Corporate Rules (BCRs)
• Derogations for specific situations such as explicit consent, necessary for the performance or conclusion of a contract and legal defence

We are well placed to support with the screening of today’s internationally mobile workforce. With extensive global reach and local language capabilities we’re able to support businesses and human resource departments with global job applicant and employee screening policies. And with our detailed research and experience overseas we can help clients ensure they demonstrate compliance with local data protection legislation, employment law and cultural considerations, in each of their hiring locations.

With identity fraud now accounting for a huge percentage of all fraud committed in the UK, verifying the identity of applicants is an essential part of your pre-employment screening process, ensuring the person you’re recruiting is who they say they are.