2009 EMPLOYMENT-RELATED SCREENING PROVIDERS
The background screening industry in the United States is a relatively unregulated multibillion-dollar sector that has no comparable foreign counterpart. U.S.-based employers with screening policies designed to meet their domestic needs and the U.S. legal framework face a completely different reality when they move abroad. Particularly in the European Union and increasingly across the developing world, a job applicant’s right to privacy trumps an employer’s right to collect information about a potential employee.
"What works in the United States doesn’t work abroad," says Andrew Boling, partner at Baker & McKenzie in Chicago. "You have to assume that your screening practices will be restricted. And in the European Union, background screening is much more limited, even for an applicant who is applying for a job in the United States. Criminal background checks are limited if they are allowed at all. Credit checks are even more restricted and seldom done, with very limited exceptions."
In many overseas locations, employers are not plagued by the same levels of employee theft and fraud and workplace violence that prompt high levels of screening in the United States. "Anecdotally, if you look at issues like workplace violence, the incidence is much lower in Europe," Boling says. In addition, sharp differences in legal liabilities diminish the need for screening. "The negligent hiring concept is a very U.S.-centric risk," Boling says, "so screening issues abroad are not as grave as in the United States."
The severe limitations placed on screening in other countries arise from a fundamental appreciation for and deference to individual privacy rights. In France, for example, credit checks generally are not permissible even if a job applicant consents.
U.S. employers operating abroad often do the maximum amount of screening allowed by law, but they are likely to encounter greater limitations going forward, Boling notes. Although laws concerning background screening are still emerging in the developing world, he sees a trend toward adopting the more restrictive approach to screening that is common in Europe rather than the more unregulated U.S. approach.
China’s 2008 workforce legislation, for example, embraces the European model of employment rights. U.S.-based screening companies are now marketing their services outside the United States, but employers should be aware that the information they can legally generate is likely to be more limited.
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