A straightforward approach to getting around European privacy laws in prospective-employee background checks
In the wake of September 11th we are seeing an upturn in requests for background and employment checks across the board, but especially on Europeans from US and UK firms. This was not a trend we had observed before now. Ironically, given the events of 9/11, US lawmakers have suddenly decided to tighten controls on personal information, bringing US regulations closer to those in the EC. Even with that step, however, the US is still behind the EC in the protection of personnel data.
This presents our European-based investigators with a couple of thorny questions about how best to serve our clients’ interests.
Although the laws are fairly uniform across the EC (and even in those countries which are not members, such as Norway and Switzerland), some countries have especially restrictive codes that prevent virtually anyone from getting information on a subject. France is a case in point. Even lawyers trying a case are severely restricted in their access to individual records of any kind, including previous criminal records. Across the board, however, credit information, tax information, criminal records, driving records, even official employment records, enjoy data protection with severe penalties for disclosure.
Does that mean one cannot get such information? Yes, at least not legally, and, as subscribers to the e-Journal know, we advocate the legal alternative. And there always is a legal alternative. If you play within the rules, you and your client are always well-served, and won’t face civil or criminal penalties.
In this case, there are a very good legal alternatives which turn out to be less costly, more straightforward, and which, when combined with proper followup, will produce the desired results.
If the person on whom the background check is required is a potential employee – the point at which one should be doing the check in any case – the employer makes hiring or permanent employment (probation periods range from 3 months to 1 year, with 6 months being the average) contingent on the presentation of a “Good Citizenship Certificate,” which is in essence a criminal record check. Unlike the US, where one must search town by town or state by state, all police records in European countries are centralized. The candidate simply goes to the local authority, presents their identity document, and fills out a request for the certificate. Only the individual in question can obtain it, and the application must be made in person and on presentation of the person’s identity document. Within a week, they should have the certificate in hand.
What does the certificate contain? It varies from country to country, but in general it says that the person has a clean record, or that they have arrests or convictions on their records. Driving offenses are not included, and any crimes committed as a juvenile will also not appear. Should the candidate waffle or refuse to get such a certificate, the prospective employer may choose to ask for clarification if the candidate is someone he really wants to hire, or to simply terminate the process.
Even if the certificate shows that the person has not committed any offenses, you still must check the employment record for missing or inaccurate periods of employment, especially if the person will have financial authority, managerial authority, be in a position to negotiate and sign contracts on behalf of the company, or hire personnel. This is a delicate task in EC countries because of data protection laws and restrictions on companies. These laws were designed to protect employees from sabotage by former employers. Unfortunately, they also protect the incompetent and outright dishonest.
One defense for the potential employer is to ensure that he understands how to read between the lines in previous termination letters. (In Germany, on leaving an employer, each employee receives a statement of performance, on company letterhead, signed by the supervisor or HR chief, outlining duties performed and containing an evaluative statement. There are no negative statements, as such, but a seasoned recruiter knows the code words for superior, satisfactory and unsatisfactory performance).
You must always contact previous employers listed on the resume (within the constraints of local law, of course: In Germany, for example, you are not allowed to contact the applicant’s last employer). The inquiry should verify dates of employment and duties performed as indicated on the resume, which legitimate basic information that any former employer should be willing to corroborate. And the “yes” or “no” answer to the always-appropriate question “If they were available to you, would you re-hire them?” can be revealing. Depending on the circumstances, the person contacted, and the skill of the interviewer, one may be able to obtain additional information that can be extremely valuable in making a good hiring or business decision. Results can range from learning that some previous jobs have been omitted, periods of unemployment are not indicated, or that dates of employment have been altered, to learning that the individual was responsible for major losses for which the company was not able to prosecute.
As always, this verification is important because statements by previous employers can be – and increasingly are! – forged or simply missing. Europe is no different from the US: Only by checking with previous employers can a company satisfy itself of the accuracy of the information in the file presented, and have a truly complete picture of the employee.
A locally-based investigator or consultant with the appropriate language skills and familiar with the local environment and practices can prove invaluable in verifying not only the hard data, but in ferreting out other information on individuals’ and companies’ reputations and business practices. They will have contacts in the countries in question, and know the shortest and most effective way to obtain the necessary evaluative data. Such information circulates in relatively small circles on the continent, and can be a deciding factor in whether or not to do business.
Despite the very restrictive laws in the EC, and by extension in the accession states to the EC, it is possible to exercise legitimate due diligence on potential employees and business partners, and this should be done routinely for all the reasons that we all know.
The easiest route is in advance of hiring, or on conclusion of a contract, as a condition of the transaction. Such checks can be done later, but are clearly more difficult because the leverage on the employee or the business contact is less. Costs of checks can be minimized by using the direct and legal approach, combined with a professionally done follow-up by an investigator or consultant. This ensures that you have served the best interests of your company through the legitimate and cost-effective exercise of due diligence.
