Before conducting background checks in foreign jurisdictions, employers should consider the nature of their business presence, because whether an employer does business in a given jurisdiction or not can actually impact the extent of its obligations to comply with the employment law of that territory.
Often, Western parent companies conduct background checks on individuals seeking to work at their international subsidiaries. In such situations, international privacy laws may restrict the free transfer of personal information.
Even if the parent company is not technically the individual’s employer, the company still should liaise with industry professionals on the extent of its legal obligations before proceeding to run background checks on individuals there.
Employers should be aware that they sometimes may not even be able to employ third-party vendors to undertake background checks for them, in certain jurisdictions.
Sometimes, local laws may block access to certain information such as credit history and criminal records by third-party vendors, and request that individuals obtain their own records from a credit bureau or law enforcement agency directly.
Employers may be able to request that individuals obtain these records on their behalf, but in some circumstances, this may be unacceptable as a pre-requisite for that person to be considered for a role. Similarly, foreign businesses may find themselves in trouble if they make continued employment at their firms conditional on an applicant or employee fetching and delivering this sort of information to them.
Where certain states in the US restrict the ability of employers to ask questions about applicants' criminal histories, similar restrictions can apply in countries abroad. Over and above this fact, a number of countries do not keep centralised criminal records and it may therefore prove difficult for an individual to even obtain his or her own criminal file.
In some countries, tying an offer of employment to the successful completion of a background check, particularly where it involves factors not deemed to be not job-related, may breach anti-discrimination laws not to mention someone's right to work.
Jurisdictions that do allow employers to conduct background checks generally require the consent of the applicant or employee first.
Some countries may also restrict the ability of employers to obtain consent through an e-signature, and in those cases they should investigate whether a hard copy signature is needed. Employers are also often required to provide the background check consent forms in the given territories' official language.
Finally, cross border businesses looking to employ staff also often face restrictions when taking adverse action based on a background check's results.
In most cases, an employer should demonstrate 'just cause' before taking any adverse action against their staff, or terminating employment based on the outcome of a background check.
Comparatively less difficult is the process of refusing employment based on their background check results, however wherever an employer is considering terminating a current employee, it should consult the applicable anti-discrimination and employment laws for that region, with possible legal advice required too.
Whenever running background checks internationally, employers should:
• Know their business presence in that country;
• Obtain consent to retrieve background check records;
• Ensure compliance with privacy and anti-discrimination laws;
• Consult with background check professionals before undertaking checks or executing action based on their results.