Some companies want to know exactly when selecting personnel: Does the applicant have a criminal record? Is he in financial need? But what is allowed during a background check?
A whole batch of applications was received for the advertised position. Some of the résumés sound promising. But whether the applicant for the controlling job is deeply in debt or the new temporary worker for the warehouse is not able to lift the new temporary help for the warehouse because of the broken back – employers cannot find this information in the documents.
Many HR professionals therefore do research on the Internet and ask personal questions in job interviews in order to find out more details about the applicants. But even with the so-called background checks, not everything is allowed. Christian Oberwetter, specialist lawyer for labor and IT law in Hamburg and Berlin, explains what research employers can do and what data they are allowed to include in the application process.
Pay attention to personal rights and data protection
In general, the following applies to background checks: Both the applicant’s personal rights and the Federal Data Protection Act and the GDPR must not be violated. The employer may only ask questions and research that are relevant to the hiring process – that is, clarify circumstances “in which he has a legitimate and legitimate interest in establishing the employment relationship,” says expert Oberwetter.
Anything that goes beyond that violates the applicant’s personal rights or data protection – and is therefore inadmissible. However, there are cases in which the employer’s interests outweigh the applicant’s personal rights.
Ask about criminal record
Very few employers want to hire an applicant with a arrest records or someone against whom proceedings are still pending. However, previous convictions or ongoing investigations may not be asked for in general, but only in exceptional cases. For example, if you are in direct conflict with the advertised position.
For example, the employer may ask a cashier about a criminal record for property offenses, a driver about road traffic offenses, and an educator about previous convictions for sexual offenses. However, if the survey goes beyond that, this is not permitted. This means: the applicant no longer has to answer truthfully – and the employer cannot dismiss the new employee if he finally discovers the lie.
Review of the financial situation
Especially when employees have direct access to cash registers and accounts, it is important to many employers that employees can also handle money in their private lives – and not personally go deep into the red. But how should employers test applicants for it? Perhaps whether they pay their rent regularly? In order to get an idea of the financial situation of an applicant
How much an applicant last earned on the job is an interesting question for employers – for example, when it comes to negotiating the salary for the position to be filled. In fact, the new potential employer is not entitled to know the amount of the previous salary. However, if the applicant brings this information into play himself, inquiries may be justified. If you have any doubts, you can also ask about your earnings that solid conclusions can be drawn about the applicant’s suitability, qualifications and commitment from the previous salary.
The employer may inquire in individual cases whether the applicant’s wages have already been attached. Here, too, he has to prove that a garnishment would generally endanger his interests. This applies, for example, to positions of trust in which the applicant manages the company’s money.
Health data are treated particularly sensitively in Germany. Obtaining information as to whether the applicant lives with a disability is not permitted in the application process. With a certain formulation, however, the question of health circumstances is allowed: “Are there physical or psychological restrictions that make it impossible for you to carry out the job?”
If the employer asks the question like this, he is on the safe side. He can also ask about allergies that could affect the quality of the work. However, the employee does not have to name occasional depression – with one exception: If the job involves a position with great responsibility, such as in aviation, the question of occasional psychological impairments may be justified.
What are the consequences of illegal background checks for the employer?
A job applicant either does not have to answer inadmissible questions or can knowingly answer them incorrectly; he has a “right to lie”. The wrong answer to an inadmissible question must not result in any disadvantage. On the other hand, he must answer admissible questions truthfully.
If he does not do this, the employer can contest the employment contract due to fraudulent misrepresentation or terminate the employee without notice. If the employer carries out inadmissible background checks or asks inadmissible questions, legal and financial consequences can follow.
In principle, an applicant has no right to be hired by the company. As a rule, the employer does not have to fear having to employ an undesirable applicant in his company.
However, under certain circumstances, the employer can make claims for damages if the applicant has gathered evidence of unfair treatment and can prove that the background check was unlawful. However, it is very difficult for applicants to provide this evidence. A candidate who was treated unfairly could also demand compensation for pain and suffering if he suspects that the HR manager has violated his personal rights.
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