International Screening Post-GDPR – Your Questions Answered
In this blog post, HireRight's Deputy General Counsel, Caroline Smith, answers some questions about international screening following the GDPR, which was enacted on May 25, 2018.
“Post-GDPR we have started to see some education institutions and prior employers declining to respond to requests for information. Have you seen this trend?”
Yes, in some jurisdictions we are seeing some sources reluctant to verify information directly. This is not least due to some guidance coming from regulators (Supervisory Authorities) that may be making sources cautious in providing such information. HireRight has three solutions to this:
We have a separate consent form developed to be sent to the source with a standalone authorisation from the candidate to provide information. This often works to persuade the source to disclose.
Our reference templates have all been updated to ensure that each referee is reminded of their duty to only provide factual information and no longer allows for free text. This can make the source more comfortable in providing information as it enables them to understand not only the scope of their duties but also the expectation of what that reference should include i.e. facts only such as job title and length of tenure.
We have a process flow developed called “current employment verification”. All customers upgrading to HireRight Global would be able to enable this workflow. Under this workflow a candidate is invited to upload documentary evidence (with sensitive information redacted) of their employment. This could be for example an employment contract and an email/document showing resignation has been accepted. HireRight can then report on this information as it will confirm key information such as job title and start date. This information is available to view by the customer within the screening manager documents tab.
“Has the introduction of GDPR changed the landscape when it comes to background checks and in particular criminal checks?”
We are seeing customers become more cautious in respect to these checks but see above. As a general comment we have completed extensive work to ensure that we are knowledgeable in this area and can partner with our customers. We continually review the landscape and are able to quickly implement any changes required as that landscape shifts. Being able to build packages to flex for different requirements also assists the customer in staying compliant.
“Some criminal checks are prohibited to be requested by a 3rd party, e.g. in France and The Netherlands. Should an employer be advised of this when requesting a check on a future joiner?”
When we work with our customers, we do so in a consultative way and encourage our customers to build packages to take into account local variations in approach to, amongst other items, criminal checks. This means that a customer can build packages at a country and role level to take into account nuances.
On top of this our platform has built-in capabilities to further enhance compliance, for example job location is checked before a check is performed, meaning that if it is unlawful in a country (as opposed to role type) to run a criminal check but one appears in a package, the system will automatically close off that check.
Finally, we have developed many product options that a customer can choose from in order to navigate this landscape whilst still being able to review meaningful information to inform hiring decisions:
Checks via official sources – as permitted under Article 10. All our Global Criminal Search checks on HireRight Global are from an official source.
Within Global Criminal Search there is a sub-product that can spin called “facilitated check”. This check works where an official source is permitted to release information on criminal records for employment purposes BUT a third party is not permitted to request this information on behalf of the candidate. This approach is taken for in-country candidates in the Netherlands for example.
Conduct Check – where an official source is not accessible or criminal checks are not permitted under local laws, we have a public media search which searches local language media and court reports in the public domain. These searches review a 6-year history and will only report if the record found is reportable under our matching and reporting guidelines.
“In real terms, Employment References only ever confirm dates of employment and not the quality of a prospective candidate’s work. Referees invariably don’t release information about attendance etc. Do you still see these types of checks as a value add in any recruitment process?”
Yes. In short, a discrepancy in such basic information could show a lack of integrity being displayed by the candidate, or perhaps point to exaggerated claims made in either CVs or interviews. Read in conjunction with other available checks (such as CV analysis), they can be a very helpful tool.
We also have an option on HireRight Global to add to the standard employment verification a “reasons for leaving”. This is a set of 11 standard responses that the candidate must choose from when they complete their information. The referee is presented with the same 11 options. Again, a comparison between the two can be very useful.
These options were worked through with our external counsel to ensure that they can be asked, and we have a final option of “local laws do not permit me to confirm” to ensure further compliance.
“How do you handle screening processes in countries where English is not widely spoken?”
Our platform supports 22 languages in the Applicant Center 2.0. We also have a team of researchers around the world with a multitude of language capabilities.
“What is the recommended approach for countries like e.g. Poland where GDPR and other laws strongly limit the possibility of checking candidates (universities are not providing information etc.)?”
We would recommend a review of all packages to see if the elements contained still fit the landscape we are operating in.
We have reviewed the Polish guidelines and one thing that is very important to note is that these are just guidelines, they are not law. The Polish laws, including the Labor Code and the GDPR implementing legislation, still permit these types of checks.
Nervousness around checks comes from the view that these can feel intrusive and there is a fear that the extent of checks will be hidden. This is why, at HireRight, we have developed an open and transparent process whereby the candidate is informed of all relevant information, including an ability to query our sources, before any processing begins. This is done via the information notice (which a customer can customise) which must be read and understood before a candidate even provides us with their information.
Ultimately, however, we would say review what you have in place today, and in countries where you have a works council, make sure you partner with them to get the programme signed off. This can go a very long way to legitimise the process and have candidates feel comfortable.
“How can we assure our employees that our background screening programme is compliant?”
Ultimately every customer should obtain their own legal advice, but HireRight has done everything we can to prepare for GDPR and built compliance by design into all our processes.
For Applicants looking for more information about the status of their background check or need customer service, click here.
Release Date: October 28, 2019
Caroline is a UK qualified lawyer with over 18 years’ experience and currently serves as HireRight’s Deputy General Counsel for the EMEA and APAC regions. When not “lawyering” or writing blogs, Caroline can be found striking yoga poses in remote locations such as Mongolia and Bhutan.