The American workforce is changing. Recent data from the Bureau of Labor Statistics shows that 15.9 percent of the total U.S. workforce, or 24.4 million individuals, were foreign-born. But this globalization of our domestic workforce is simply a mirror for what’s happening with some of the biggest names in corporate America.
“Big U.S. firms—often called “multinationals,” for good reason—have increasingly followed global growth, with about 40 percent of profit for firms listed in the S&P 500 stock index now coming from overseas. Foreign exposure allows U.S.-based companies to capitalize on rapid growth in emerging markets like China, India, and Latin America, and earn much stronger profits than if they were totally dependent on the struggling U.S. economy.”
This has huge implications for the background screening industry and the employers who wish to open overseas offices or invite more foreign-born workers into the domestic fold.
JD Supra recently tackled this issue in an intriguing blog post of which we’ll share highlights with you here. The post, “What U.S. Multinational Employers Need to Know about Background Checks,” offers insight into cross-border differences and tips to help U.S. multinational business navigate background checks. It’s written by the team of attorneys at Proskauer.
International Background Checks
Not every country, and not even every jurisdiction within certain countries, allow background checks. Those that do most often require the consent of the candidate, just like in the U.S. How you get the signature, though, matters. Electronic signatures are normally not allowed, a hard copy signature is usually the safest bet.
Additionally, employers should always provide a consent form in the applicant’s national language, if not the country’s language, where the hiring is taking place.
Third-party vendors often aren’t allowed to conduct background checks. That means a Consumer Reporting Agency (CRA) like Active Screening would not be allowed to directly access a candidate’s records for screening purposes and then hand them over to an employer. Instead, the actual candidate might be required to get their own files – like criminal history or credit report – and hand them over to the prospective employer.
That doesn’t mean background screening agencies aren’t used for multinational purposes, though. It just means that U.S. companies who wish to open an overseas branch must check the laws in that country or jurisdiction before proceeding to work with a third-party screening agency. One option is to partner with a third-party CRA who can explain the jurisdictions’ laws and act more as a consultant.
Most other countries maintain the same standards of privacy when it comes to asking about a candidate’s criminal history.
Moreover, some countries don’t even keep centralized criminal records so there would be no way to verify a candidate’s disclosures. Perhaps the most important thing about criminal background checks employers need to know is this:
“In some countries, conditioning employment on the successful completion of a criminal background check, particularly where not job-related, may run afoul of applicable anti-discrimination laws, as well as an employee’s right to privacy and/or right to work.”
This is tricky. Terminating employment or a conditional offer based on the results of a background ground is much more difficult in other countries. The first thing an employer will want to do, and we’re assuming any American company who wishes to develop foreign operations has deep pockets to do so, is to hire an employment attorney who is deeply familiar with that country’s hiring laws. The second thing to know is that while terminating employment may be justifiable in America based on background check results, it may not be in other countries and you may face more issues. Anti-discrimination laws vary so, again, that attorney will come in handy.
We’ll leave you with these tips provided by Proskauer:
▪ “know your business presence” in a given country
▪ obtain consent to retrieve any given number of background check records
▪ ensure compliance with applicable privacy and anti-discrimination laws
▪ consult with local counsel both before running a background check or before taking adverse action based on the results
It’s important to know that cracking the compliance code for conducting background checks outside of the U.S. is extremely difficult. Most international CRAs have expansive expertise and knowledge of their countries’ hiring and screening laws and don’t always want to share that knowledge with U.S.-based screening firms. That’s understandable and, therefore, partnerships with international screening firms are paramount to helping domestic CRAs like Active Screening complete request for international background checks.
Do you have any experience attempting to secure an international background check? Are you a foreign worker who had to undergo a background check before on-boarding with your American company? How was the experience? We’d love to hear from you. Leave us a comment below!