April 3rd, 2017 | Sterling

Background Screening Foreign-Born Workers

Organisations are seeking out workers in other countries as well as hiring foreign-born workers who are currently residing in the UK. This extended geographical reach helps employers to find the best talent and in the process diversifies the workforce. In our Background Screening Trends and Best Practices 2016 Report, we found that 88% of companies hire foreign-born workers or those with international experience. But, fewer than half (45%) of UK companies conduct global pre-hire background checks on these employees. Global background checks can be time-consuming and costly for some companies, but they are essential to protect their company’s brand and reputation from the possibility of bad hires.

In our latest webinar, Background Screening Foreign-born Workers: 5 Essential Compliance Tips Oran Kiazim, Vice President, Global Privacy at Sterling, discussed how international data protection and privacy laws affect the global background screening process.

International Landscape

Outside of North America, data protection and privacy laws primarily regulate background screening. These laws can vary considerably from one country to another and, when combined with employment laws, result in a patchwork of legal obligations organisations must follow. Some countries have single or multiple national privacy or data protection laws that result in comprehensive coverage while other countries do not have data protection and privacy laws but, have some coverage in their constitution and other laws. When creating a new background screening programme in international locations and “exporting” an existing screening programme to international locations, it is important to remember that one size does not fit all, and there can be many hurdles imposed by local laws. Multinational corporations must develop a background screening strategy which is relevant to the markets, cultures and geographic locations in which they operate. One of the best ways to do that is to follow a “rationalization” approach which looks to identify the core elements of all the applicable laws whilst also considering the outliers.

Requirements and Restrictions For Global Background Screening

When determining the applicable law for screening, it is important to understand the territorial (jurisdiction and location) and the material (country and sector) scope of the laws. A company’s background screening programme must align with local legal requirements and restrictions. Data privacy, employment and discrimination laws all factor into the background screening process.

Data Privacy Laws – While there are often restrictions on certain background there are also risks with processing sensitive personal data, with specific country restrictions on consent and retaining data. The General Data Protection Regulation update in May 2018 will make changes to the UK data protection laws. (Stay tuned for more information to come for these updates).

How is consent given based on current UK laws? Consent is defined by three criteria:

• Freely given: Freely given consent means that the candidate has a genuine and ‘free’ choice in agreeing to the processing of his or her personal data.
• Specific: Specific consent is given for a specific purpose such as contacting a former employer for a reference check.
• Informed: Informed consent means that the candidate knows all the different types of processing of his or her personal data, including who is processing it and where it will be processed.

Employment Laws – These laws usually reflect data protection and privacy laws, but not always, especially in outlier countries, such as Poland. Employment laws provide obligations and guidelines for employers and employees including language requirements, drug and alcohol testing and requirements to consult with works councils (for European countries in particular). . With Brexit, there could be an impact on immigration and recruitment of foreign-born workers in the UK, which may potentially make the country less competitive for this sector of the workforce.

Anti-Discrimination Laws – Anti-discrimination laws will vary by country. The UK Equalities Act 2010 aims to protect individuals who have certain characteristics, known as “protected characteristics”. Some countries including the UK, U.S., Australia and New Zealand, have specific laws about protecting an individual with a criminal history and how the results of a criminal record check should be used as part of the hiring process. It is very important to be transparent with your employees and candidates, perhaps through a background screening policy.

Global Screening Tips

Creating a background screening programme is also a balancing act. Companies are trying to address potential corporate risks whilst respecting the rights of their employees and candidates. A “blanket-rule” approach should not be followed as there are many regulations that could be breached based on candidate’s location. Therefore, role-based background screening ensures a proportionate approach that mitigates risk, whilst respecting employee and candidate privacy.  Businesses should plan a longer timeline for their onboarding procedures to allow for sufficient time to run global background checks, as these normally take longer. It is vital only to use job-relevant background check information when making a final hiring decision. Decisions based on negative findings, unless directly relevant, could be discriminatory or a breach of privacy laws.

Be Informed

How do you keep up-to-date with data protection and privacy laws that affect global screening? Since laws might take a longer time to get enacted, keeping up-to-date with every single change is feasible although not necessarily the most effective approach. Reach out to your background screening provider and legal advisor to receive updates about background screening program solutions that will work within the evolving global regulations. That being said, it is still important to understand the changes by subscribing to newsletters and webinars, such as those provided by Sterling, to learn the latest updates to the background screening industry. To learn more listen to the On Demand version of Background Screening Foreign-born Workers: 5 Essential Compliance Tips.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.