The way companies conduct background checks is changing rapidly due to changes in privacy laws and regulations. The changing landscape of data protection and privacy regulations is making it more difficult for employers to carry out background checks on employees or job applicants. It is essential for employers to stay informed about these changes since the failure to comply can expose them to legal and financial ramifications.
Privacy regulations are intended to protect the rights of individuals, but they can pose a major compliance challenge for employers. These regulations vary across jurisdictions, making it difficult to create a one-size-fits-all solution to background checks. For instance, the European Union's General Data Protection Regulation (GDPR) stipulates that employers must obtain explicit consent from job applicants before conducting a background check. This rule has made it difficult for agencies providing background checks in the EU to gather necessary information, and it is potentially preventing these agencies from providing complete or accurate reports.
The GDPR has also given individuals the right to request access to any background check or other personal data about them that is held by an organization, as well as any information about how such data is being used. This regulation puts pressure on employers and background check providers to keep better records and be more transparent about how they obtain and use such data.
Outside of the EU, states in the US are implementing a patchwork of privacy regulations. The State of New York recently passed the Stop Hacks and Improve Electronic Data Security (SHIELD) Act, which expands the scope of businesses that are required to implement reasonable data security measures. This act also increases the legal penalties for failing to comply with the regulations. Similarly, recent California Consumer Privacy Act (CCPA) established a robust framework of consumer data rights, and has inspired other states to introduce similar measures.
All of these regulations require organizations to be more rigorous about the use of personal data, particularly sensitive personal data, which includes criminal records. Employers need to ensure their background check providers are up to date with the changing regulations and have put measures in place to safeguard the information they gather.
Furthermore, the rise of social media has created new challenges for background check providers. Now, it is more common for employers to conduct online searches to gather additional information about potential hires. However, the inclusion of social media profiles can be a double-edged sword: while it may provide more information about a candidate than traditional background checks, it may also be too intrusive and potentially discriminatory. Social media profiles can provide employers with personal details, such as age, ethnic background, religious beliefs, and political opinions, which are often not relevant to the job they are applying for. Employers need to balance the need for information with the respect for privacy and discrimination laws.
In some cases, background checks have resulted in discrimination against particular groups or individuals. Recent high-profile cases, such as the Uber scandal, highlight this issue. Uber was sued by job applicants who claimed that their criminal records had been unfairly used to disqualify them from driving for the company, even when their records were relatively minor. This type of scenario where candidates might be unfairly discriminated against has become more common as the volume of data increases and employers rely more on automated screening tools.
In conclusion, changes in privacy laws and regulations are having a significant impact on the future of background checks. As the scope of data protection laws broadens, it becomes more challenging for employers and background check providers to collect valuable information about potential hires. Employers need to stay informed of the changing regulations to ensure they remain compliant while still making informed hiring decisions. The use of social media has also created new challenges, and organizations must balance their need for information with respect for privacy and discrimination laws. Finally, the rise of automated screening tools has increased the risk of unfair discrimination, and employers must be wary not to cross legal lines when screening applicants.
