What is a background check?
A background check is the process of searching and verifying information about people or companies with which one intends to enter into a professional or commercial relationship. This process can be carried out manually or automatically and aims to gather information about different aspects of the history of a person or company, such as criminal records, relationship with banks, and history with financial services, among others.
Nowadays the background check is already part of the compliance routines of several companies, and an important form of guaranteeing the legality of commercial and professional relationships.
It is important to highlight that background checks have some regulations in Brazil, that limit its reach and use, especially regarding the verification of information from individuals - both due to the General Data Protection Law (LGPD) and due to labor regulations and protection from discrimination.
Background Check and Data Protection in Brazil
Brazil recently passed its first data protection law, the LGPD (General Data Protection Law - Law nº 13.709/2018 which came into force in 2020). This legislation aims to develop many instruments that impose limits on the ways in which companies use personal data in Brazil, as well as the amount of data used.
With regard to the background check processes, which by definition involves the processing of personal data, as it uses the name, documentation, and other information of individuals, this new law presents the need to justify its execution and also limits the amount of information that can be consulted.
The justification for carrying out any background check on data of individuals in Brazil must be supported by the legal hypotheses for data processing brought by the LGPD, provided for in its article 7. Here it is important to highlight that most companies use the justification of Legitimate Interest to carry out the information verification process.
What is legitimate interest?
Legitimate Interest is a provision of the legislation that allows the processing of personal data whenever necessary to meet some essential interest of a company or individual, that is, in order to guarantee a free flow of information, indispensable for the development of business and its activities, the law provides for situations in which, by weighing the rights of the company and data subjects, duly supported by a specific study, the company may process data without the need for explicit consent.
It is clear that the background check fits into this hypothesis whenever it is essential to guarantee the legality of the commercial or contractual relationship between the company and an individual. In this case, the company must carry out a Legitimate Interest Assessment (LIA) that demonstrates this aspect and guarantees that no fundamental rights are being violated.
In what regards the limitation of the data used in the background check process, the LIA also comes in handy. During the preparation of the LIA, when the company determines its legitimate interest, it must delimit the amount of data necessary for the background check to guarantee the security of the relationship with the individuals that will be verified.
Therefore, when performing the background check it is necessary to determine if the process is reasonable and if the research for certain aspects of an individual's life are not too invasive in the specific case in which the process is being performed.
While companies could carry out a search through social networks in the event of hiring employees, for example, they can't always justify such a search based on its legitimate interest. On the other hand, it is fully justifiable for a company to want to carry out a criminal background check on candidates and employees in the situations allowed by the labor authority, in which case it is possible to justify its legitimate interest.
When can companies perform background checks?
Among the possibilities of carrying out the background check is the one in which an employer makes inquiries about the criminal history of a candidate or of an employee. In the case of employees in Brazil, that is, people hired under the legal regime of the CLT (labor law), there are specific regulations so that background checks can take place.
The rule, in the Brazilian case, is the prohibition of carrying out Background Checks to verify the criminal background of employees or candidates, in order to avoid discrimination. However, the Superior Labor Court, the court responsible for regulating labor relations in Brazil, has determined cases in which this verification is justified:
- Whenever provided for or demanded by law;
- When the position has a high degree of trust required, such as:
- Domestic employees;
- Caregivers for minors, elders or disabled persons (in daycare centers, nursing homes or similar institutions);
- Heavy load truck drivers;
- Employees in the agro-industry who use sharp work-tools to perform their services;
- Workers who deal with toxic substances, narcotics and weapons;
- Workers who deal with confidential information;
Apart from these cases, the requirement to present a criminal background check is considered discriminatory and may generate indemnification in favor of the verified employee or candidate, so great care is required both by the HR department, compliance or any other department responsible for the hiring process in the company, as well as by the department that deals with data protection, in order to ensure a solid legal basis for carrying out the process.
Emptor assists all its clients to seek compliance with these determinations, since it is also in its interest that all background checks that it performs on behalf of its clients are legal and legitimate, guaranteeing a suitable environment for its business.
Once the legality and legitimacy of the background check are guaranteed, the process brings great benefits to any company, since it prevents fraud and guarantees security.
If you or your business need secure, automated and accurate background checks, Emptor can help! Just fill in the form and a member of our team will reach out to you.