Navigating Global Background Checks: Key Insights for Employers

Quick Hits

• Many countries outside the United States restrict the type and scope of employment background checks that employers may conduct.
• Internationally, criminal background checks face the most restrictions, while the permissibility of drug testing varies widely, and education and employment verification are more common.
• Employment references may require careful interpretation as ostensibly positive terms could actually signal poor performance due to cultural differences and local legal requirements.  

Below, we review some of the complexities of conducting background checks from an international employment law perspective.

Criminal background checks

Very few jurisdictions permit criminal checks in the manner they are conducted in the United States. The United Kingdom and Australia have comparable systems, but their usage is more restricted. In many European countries and other jurisdictions, employers may request a certificate of good standing or clearance from the local police precinct. However, these certificates are often limited in scope—typically confirming only whether the individual has a criminal record in that specific precinct and excluding “spent” convictions (typically those that are more than five or ten years old). Employers are neither permitted to ask about nor be informed of spent convictions, adding another layer of complexity to criminal background checks.

Drug testing

Drug testing is another area with significant jurisdictional variation. While generally impermissible in Europe, some countries in the Middle East and Asia allow drug testing with consent. However, a positive test result in these regions may require reporting to local authorities, which can deter employers from conducting drug tests even though it is lawful.

Education verification

One consistent aspect of background checks across all jurisdictions is the verification of education. Employers may request education certificates or professional licenses, making this one of the easiest-to-obtain and universally permissible components of a background check.

Employment references

When it comes to verifying prior employment, most countries allow employers to request a reference or a certificate of employment. In a number of jurisdictions, former employers must provide details about the individual’s performance—not simply dates of employment and last position held. To properly interpret such references, however, it may be necessary for employers to understand the customs and practices of each local market. In some countries, terms like “satisfactory” or “good” may actually indicate poor performance, despite the seemingly positive wording.

Conclusion: A Complex but Navigable Process

Implementing a global background check policy requires careful consideration of the various legal and cultural nuances across different jurisdictions. Employers may want to familiarize themselves with the complexities and requirements to ensure compliance and make informed hiring decisions.

Ogletree Deakins’ Cross-Border Practice Group will continue to monitor developments and will provide updates on the Cross-Border blog as additional information becomes available.

Shirin Aboujawde is a shareholder in the New York office of Ogletree Deakins, and a partner in the firm’s London office.

Patty Shapiro is a shareholder in the San Diego office of Ogletree Deakins.

Peg Ventricelli, a practice assistant in the Stamford office of Ogletree Deakins, contributed to this article.

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