Background checking is nothing more than a recruiter or prospective employer reaching out to other individuals (entities) to verify information about a candidate. This practice is widely used in the United States, primarily involving recruiters obtaining information on a candidate’s criminal history, educational background, behavior in previous jobs, or tendencies towards addiction.
In Polish law, background checking is not explicitly regulated. So can it be applied?
What data can a recruiter request from candidate?
When it comes to data that recruiters can request from candidates, the Labor Code plays a crucial role in employee recruitment. According to the Labor Code, an employer can request information such as the candidate’s name and surname, date of birth, contact details, education, professional qualifications, and the history of previous employment. Article 221 §4 of the Labor Code allows employers to request other data from a person seeking employment only if it is a necessary to fulfill a right or obligation arising from a legal regulation.
As an exception, recruiters can process additional data with the candidate’s consent.However, consent must be clear and expressed voluntarily. The lack of consent should not result in any negative consequences for the person seeking employment, such as refusal to continue the recruitment process or refusal of employment. European authorities and the Personal Data Protection Office (in Polish: UODO) suggest potential misuse, such as unequal treatment of candidates based on consent or refusal to share additional data that supposedly helps employers in the recruitment process.
Who can provide information about candidates?
Candidates themselves should be the primary source of information about themselves. They submit relevant documents while expressing consent for the processing of voluntarily provided personal data during the recruitment process. Therefore, collecting information about candidates participating in the recruitment process should occur directly from the person seeking employment, with their prior consent.
Collecting informationshould not rely on data obtained through third parties, various registers, websites, or other indirect sources.
What information cannot be requested by a prospective employer?
There is a range of information that cannot be requested by a prospective employerfrom candidates and they also cannot verify it.
- Previous employers’ opinions about candidate and direct indication of the reasons for terminating the candidate’s cooperation with previous employer
These actions are not allowed by the Labor Code because this kind of information has not been appropriately regulated. Exceptions include situations when candidate has provided voluntarily documents indicating this information, making it legal for the prospective employer or recruiter to obtain it.
- Information about whether the candidate graduated from different institutions of education
Recruitment process is based on data provided by the participant in the form of declarations of will or submitted documents. Therefore, potential future employer cannot independently contact any educational entity such as school or university with a request to confirm whetherthe candidate is indeed a graduate of these institutions.
- Information about whether the candidate’s presented recommendations from the previous employers are true
Unless the prospective employer (recruiter) has been authorized by the candidate to verify the references they provided.
- Information about candidate’s criminal record
Unless a specific legal provision requires the candidate to meet the condition of having no criminal record. This requirement exists in some professions. Importantly, if requirement of having no criminal record is not specified in the regulations for a particular profession, requesting a certificate of no criminal record is not allowed, even with the candidate’s consent.
- Information shared by a candidate or other individuals via social media
Recruiter cannot require such information, if they are posted on social media mainly used for social purposes. Utilizing such data may create the potential for violations of the principles of equal treatment and non-discrimination in employment or the right to privacy. Exceptions include platforms specifically designed for professional purposes, such as LinkedIN, from which information can be obtained due to their purpose.
What consequences may employers or recruiter face for violating these norms?
In case of violation, employers may face primarily legal consequences. Depending on the type of illegal action, these consequences, may be associated with liability arising from the Labor Code (e.g. violation of the non-discrimination principle), the Civil Code (e.g. violation of the personal rights of the candidate, including the right to privacy), or EU regulations, especially GDPR.
Aleksandra Kucharska Agnieszka Bodzek
attorney paralegal