Published February 16, 2009
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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