Legal Tools for Talent Retention: “Don’t lie to me and if you do, just go away” Employee’s Background Screening

It is a fact that nowadays most of employers perform pre-screening of candidates’ background, in the attempt to find and select the best talent possible for an open position. The most frequent questions we usually receive from clients are related to the extent of pre-screening activities, but last week we received by far one of the most sensitive requests, which is summarised below.

• We would like to carry out more sophisticated checks on some candidates who will hold senior management position.
• Can we terminate the employment contract if after we employ we discover that she/he submitted false information/documents? 

In the actual business context, hiring employees with adequate competences for a job and finding candidates that match the best work experience required it’s a must for the companies. 

The employers are interested in protecting themselves from risks arising from a working relationship with a new employee, such as fraud, bad reputation, and inappropriate clients managing relationship or other aspects that could affect the future job performance.

Legal restrictions

Background screening could be an effective tool to ensure that a candidate will “walk the talk”, but such screening is imperative to be conducted within the law. That is to say, the activities performed as part of the pre-screening process are subject to certain legal restrictions, as below explained.

Going straight to the rules, Romanian labour regulations provide that an employer has the right to verify both professional and personal skills of a candidate under the condition that the purpose of such screening must be limited to the assessment of the professional capabilities and aptitudes of a candidate. 

Regular checks

By way of history, the pre-screening an employee was first regulated in 2003 followed by a slight but useful modification made in 2011. At that moment, in practice, a background check would have involved checking the information provided by a candidate mostly in her/his Curriculum Vitae (CV) and was focused mostly on previous positions and duties performed during the course of employee’s professional experience. Later on, employers extended the verifications on other important issues, such as:

• reasons of employment termination
• history of compensation claims against the former employees
• validations of studies and/or certifications /trainings
• affiliation to different professional associations
• criminal record
• validation of ID card
• address checks.

In these days, the scope of verifications was extended even more to other aspects such as global databases, terrorist watch lists, debarment or exclusion lists and international professional licenses.

Can an employer check everything?

The question which arises is whether or not an employer can check everything and anything related to a candidate. 

For those of our readers who are very busy and want a quick answer, we simply say NO. 

And for those who are still reading this article, we explain below why.

There are certain legal limitations which govern a background check and we mention here the important ones, such as:

• verification should strictly refer to the employment history of the candidate
• very important, the candidate must be previously informed that such search would be conducted. 

To be observed that the legal framework does not explicitly refer to any other additional investigations that, in these days, companies regularly perform, internally or by contracting third party agencies, including:

• criminal background checks
• credit history
• drug tests
• education records/academic degree verification
• international certifications verification
• spouse employment history
• global databases checks.

Rejecting applicants

If the results of the background screening are unsatisfactory (for instance: it is revealed that the candidates provided inaccurate or false information in CV, the applicant has a bad reputation etc.), the employer is entitled to reject such applicants. 

Nevertheless, many companies experienced situations when certain information provided by an employee (during the recruitment process) was fabricated only to enhance the eligibility and to get the job.    

Terminating the employment contract

Is the employer entitled to terminate the individual labour agreement on this ground? 

YES and NO.

Yes, if there is a trial period and the employer discovers the false information inside the validity of trial period.

No, if there is no trail period or it expired. Let’s not forget that an employer has the right to carry out investigations BEFORE the employment contract is signed. 

Nevertheless, a candidate or an employee who misinforms by submitting forged documentation might be held liable for committing the crime of forgery, but this is subject to criminal investigations which are initiated based on employer’s complaint submitted to the relevant authorities.  

Conclusion

As a conclusion, the validity of conducting background checks depends on the purpose of such screening, which should be exclusively tailored to determine if the candidate’s professional background provided in her/his statements is accurate. Any extension of such screening to other aspects related to her/his private life is not permitted and could be viewed as a breach by the company of some paramount principles, such as the equal treatment and interdiction to discriminate.

The above information should not be construed as legal advice on a matter which your company is seeking resolution. You should seek tailored advice of legal counsel before acting upon any information provided in the above article.  For any additional information and/or questions, you can reach us at This email address is being protected from spambots. You need JavaScript enabled to view it..